Analysis
The appellant filed a paper tax return late and was liable to a penalty but appealed, arguing that it was merely intended to be a copy of a tax return subsequently filed online and in time. The respondent’s proposition was accepted that a subsequent online timely filing of a tax return by 31 January did not relieve a taxpayer, who had filed a valid paper tax return after 31 October, from a penalty. However, although the nature of the paper document which had been filed was in dispute and central to the issues between the parties, the respondent, on whom the burden of proof lay, failed to produce a copy of the tax return in the evidence submitted. Determining the appeal without a hearing, the tribunal judge therefore allowed the taxpayer’s appeal on the ground that the respondent had failed to discharge its burden of proof that the paper document filed by the appellant was a valid tax return, thereby giving rise to a late filing penalty. The respondent now applied to set aside his decision.
Held (dismissing the application)
The tribunal had jurisdiction to set aside a decision if it was in the interests of justice to do so and it was satisfied (inter alia) that a document relating to the proceedings was not sent to the tribunal at the appropriate time or there had been some other procedural irregularity. While a failure to submit evidence at the appropriate time might be considered procedurally inadequate, it was not self evidently in the nature of a procedural irregularity so as to satisfy the condition and the respondent did not provide an explanation for its failure to include a copy of the paper tax return in the evidence submitted. The jurisdiction to set aside decisions in the default paper category of tax appeals could not be used to permit a disappointed party to produce new evidence after the event when there was no good reason why that evidence had not been submitted in the first place. If this were permitted, there would be no finality as default paper appeals would involve a decision making process which was iterative. It was not in the interests of justice to allow the respondent to re-litigate the issue by producing evidence which should have been submitted in the first place to discharge its burden of proof. Accordingly, the decision could not be set aside and, even if the condition had been satisfied, any discretion to do so should not be exercised because it would not be in the interests of justice to do so.
JUDGMENT JUDGE GUY BRANNAN: Introduction [1] The respondents (HMRC) have applied on 22 August 2013 to set aside my decision of 8 July 2013, notice of which was sent to the parties on 26 July 2013 (the decision). Background [2] In short, the decision concerned a penalty under para 3 Sch 55 Finance Act 2009 …Continue reading "Rosenbaum (dec’d) v HMRC [2013] UKFTT 495 (TC)"