Tax penalties notices were 'sent' & 'received'

In Nicholas Burley v HMRC [2022] TC08701, the First Tier Tribunal (FTT) found that Self Assessment late filing penalties totalling some £280k had been validly served. The taxpayer's argument that the letters had not been received was dismissed.

• Mr Burley was issued with a notice to file a tax return for the 2015-16 tax year on 13 October 2016. The return, due by 31 January 2017, was eventually filed on 10 January 2019.
• For 2016-17 the taxpayer was obliged to notify HMRC that he was chargeable to tax by 5 October 2017. The return, due by 31 January 2018, was filed on 10 January 2019.
• Mr Burley was issued with the following penalties:
  • 30-day and 6 month Late Payment Penalties of 5%
  • Fixed and daily Late Filing Penalties
• The taxpayer Appealed the penalties on the basis that HMRC had not correctly issued the penalties as they had not been received.
• The appeal was not filed on the basis that the taxpayer had a Reasonable Excuse.

The FTT found:

• HMRC had the burden of proof to show based on the balance of probabilities that the penalties had been correctly raised and notified to the taxpayer, if they met this burden the taxpayer had to displace the presumption they had been correctly served.
• The evidence presented to the tribunal was adequate, that is sufficiently detailed and cogent, to show that the notices had been created and posted:
  
  • HMRC showed printouts of the taxpayer's self-assessment record showing the penalties had been issued.
  • An internal HMRC document also showed the penalties having been imposed.
  • These details could be shown to have been provided to a contractor who handles the production and posting of penalty notices.
  • The contractor then provided HMRC with two documents that evidenced the printing and dispatch of these notices.
  • No letter was received back through HMRC's ‘dead letter’ service.
• The taxpayer was unable to displace the presumption that the penalty notices had not been served to him, his evidence of non-receipt was not seen as credible as:
  • A significant quantity of other HMRC post had reached him, including post about other HMRC penalties. It was not credible that the only correspondence which hadn’t been received was the penalty notices.
  • He had a history of late filing and being charged penalties accordingly.
  • Other correspondence with HMRC acknowledged that the penalties had been raised, prior to the penalty appeal which contended they hadn’t.

The appeal was dismissed.

Useful guides on this topic

Penalties: Late Filing (freeview)
Late returns can be subject to a mix of fixed and tax-geared penalties. What penalties apply for late filing? Which penalty will apply and when? 

Penalties: SA late filing, payment, notification & error (freeview)
Self Assessment (SA) tax penalties: what penalties are due for outstanding tax returns? What penalties are due for late payment? Are there special rules for Covid-19 delays?

Penalties: Late Payment
What penalties are charged when tax is paid late? 

Penalties: Late Payment: At a glance (freeview)
What penalties apply if tax is paid late? What are late payment penalties? Can you appeal late payment penalties?

Penalties: Failure to Notify
What tax penalties apply if you fail to notify HMRC that you are chargeable to tax? Can they be appealed or reduced?

Appeals: Grounds for Appeal Toolkit
What grounds are there to appeal a tax penalty? How should you word a tax appeal? Can you appeal HMRC errors? What is a reasonable excuse? 

External links

Nicholas Burley v HMRC [2022] TC08701