Readers will recall that in June we drew attention to the fact that a person is required to file a tax return only if HMRC have issued a notice requiring him to do so (Tax returns: do I have to file one?).
Hot on the heels of that earlier case comes that of Mr Joshi [2017] UKFTT 644 (TC). Like the appellant in the earlier case, Mr Joshi was a newly-appointed director of a company. He was late in filing his personal tax return. He appealed against the resulting penalty. It is worth quoting in full his grounds for appeal:
“I started Midland Solar Ltd in 2011. I was a new business man. I had no idea about any taxes. No-one mentioned that you have to do self-assessment. I was paying regularly corporation tax.
I came to know about self-assessment when VAT people came in 2014 and they ask me about self-assessment, at that time I realised that I have to do this, then I took immediately action and I filed all the self-assessments.
Even HMRC did not write to me that you have to do? This is not a good practice for new business comer.
Like me many new business starter will be victim of this type of penalty, Plus interest on the penalty. This is like a extra income for HMRC, so they will not care to inform that new comer in business. This is my first time mistake, after I am regular in self-assessment.
If you want to promote a new business comer that you must have mercy for first time. At least inform a new comer that you have to submit your self-assessment, so they don’t make mistake which I made innocently. This is a duty of HMRC to inform about this, but it never happen.
This is my first mistake done by innocently, so HMRC must have mercy on me, if I make any mistake then they can take action that is reasonable, but not for first time.
This is my humble request to court and HMRC.”
Now, although Mr Joshi doesn’t use technical words like “notice to file a return”, the gist of his appeal is clear: he claims not to have been told that a personal tax return is required. It is therefore surprising and a little worrying that although the reported decision recites the relevant statutory provisions at length, there is not so much as a word about the rather crucial question of whether or when HMRC actually issued a notice requiring the filing of a tax return or Mr Joshi received such a notice.
It’s quite possible, of course, that HMRC held irrefutable evidence that such a notice was issued and that on the balance of probabilities Mr Joshi received it. But that evidence, if it existed, should have been laid before the Tribunal.
Natural justice requires that when a taxpayer asserts that the reason he didn’t file a tax return on time was because he hadn’t been asked for one, that assertion must not be ignored. It must be properly addressed by HMRC in its case and tested by the Tribunal in coming to its decision. To accept on the nod a crucial part of HMRC’s case – or, worse, to be ignorant of its importance – does not look to this observer much like justice.
For more information, please get in touch with your usual BKL contact or use our enquiry form.
This article was later published in Tax Journal (Issue 1366) and is also available on the Tax Journal website.
