In DJ Wood v HMRC [2018] TC06339, the First Tier Tribunal (FTT) found that a return was unsolicited so late filing penalties could not apply.
Late Filing Penalties apply where a tax return is filed after the due date. The deadline depends on when the Return was issued; a paper return for 2017/18 must be filed by the later of 31 October 2018 or two months after issue or an online return by the later of three months after issue or 31 January 2019.
Per HMRC, notices to file were issued for each of the relevant years (2010/11, 2013/14, 2014/15 and 2015/16) but were sent to Wood’s previous address. Wood denied receiving any notices to file or penalty letters.
HMRC claimed that they had not been notified of Wood moving house, but their Debt Management Unit did use the correct address.
Wood filed tax returns for all relevant years in 2017.
The FTT found that
- “Simply exhibiting a computer record on which the words “Notice to file” are included does not, in our view, discharge HMRC’s evidential burden of establishing that a notice in the form required by Section 8 was sent”
- As HMRC had not proved the Notice was sent, the returns were not submitted in response to them (i.e. the returns were unsolicited)
- Late filing penalties could not, therefore, apply
- The balance of evidence showed that the so-called notices to file were sent to the last address on HMRC’s records and Wood could not show that they had not been received.
- The notices would have been deemed received if they had been valid
- The penalties (totalling £3,400) were not disproportionate even though no tax was due
- Financial and trading pressure was not a reasonable excuse.
Comment:
Late filing penalties cannot apply to an unsolicited return as HMRC should instead pursue penalties for failure to notify liability. The finding that the returns were 'unsolicited' is novel although entirely logical on the facts: the FTT noting that if HMRC had supplied a copy of the standard notice to file with their computer records they would have been more sympathetic.
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