Late appeal: taxpayer failed to provide evidence

In Shane de Silva v HMRC [2021] UKUT 0275, the Upper Tier Tribunal refused to allow a late tax appeal. The taxpayer persistently failed to explain the reasons behind a period of delay of between 551 and 1338 days.

• The taxpayer failed to file tax returns for 2009/10, 2010/11 and 2011/12.
• HMRC raised assessments for £63k. Following a lack of taxpayer engagement, in 2017 it obtained a county court judgment for bankruptcy.
• Only then did Mr Da Silva decide to take action and the county court’s judgment was set aside to allow him to make an appeal to the First Tier Tribunal (FTT)
• The appeal was Notified to HMRC from 551 to 1338 days late.

The FTT refused to allow the Late appeal.  

The taxpayer made an appeal to the UT on the basis that the FTT reached a decision that no reasonable tribunal could have reached on the facts.

• The taxpayer claimed to have provided evidence of his accounting profits in the evidence given to the FTT and that the FTT had then misunderstood the difference between income and profits. He also stated that if the assessments were not overturned he would be made bankrupt.
• The Upper Tribunal (UT) reviewed the FTT's decision and decided that an appeal should be heard.

On Appeal, the UT noted that neither the taxpayer nor his adviser had given evidence to provide a sufficiently good reason for the serious and significant delay in making an appeal. The burden of proof, in this respect, lay with the taxpayer.

Having made an evaluation of the merits of the reasons given for the delay, the UT and weighed those up with the vast length of the delay, the cost to the taxpayer of not allowing the appeal and the costs to HMRC for re-hearing evidence.

It concluded that the FTT had come to the correct decision and dismissed the appeal.

Comment

The taxpayers' original failure to engage with HMRC was never explained! In a late appeal, the taxpayer has to meet the qualifying conditions as set out in s.49 TMA 1970 and then Case law on Late Appeals tells us that the tribunal should:

• Establish the length of the delay.
• Establish the reason(s) for the default.
• Evaluate all the circumstances of the case which will:
  • Involve a balancing exercise to assess the merits of the reason(s) for the delay and the prejudice which would be caused to both parties by granting or refusing permission.
  • Take into account the importance of the need for litigation to be conducted efficiently and at proportionate cost and for statutory time limits to be respected. 
• Shortage of funds (and consequent inability to instruct a professional adviser) should not generally carry any weight in the FTT’s consideration of the reasonableness of the applicant’s explanation of the delay.

As the UT noted the burden of proof lies with the taxpayer to persuade the tribunal that a reasonable excuse existed and that there is merit to allowing a late appeal. 

Useful guides on this topic

Late appeals
When can you make a late tax appeal? What conditions must be met?

How to appeal an HMRC decision
Disagree with a HMRC decision? How to appeal, what type of decision can you appeal and what are your different options when you disagree with HMRC? What are the key steps in making an appeal?

How to appeal a penalty assessment?
What are the steps in making an appeal? What should your appeal cover? What does recent case law say on this topic?

Discovery Assessments
When can HMRC make an assessment outside of normal assessment time limits? How can you appeal a late assessment by HMRC.

External links

Shane de Silva v HMRC [2021] UKUT 0275