Late appeal allowed: tax adviser mistake

In Marie Guerlain-Desai v HMRC [2023] TC8795, the First Tier Tribunal (FTT) allowed a late appeal against a SDLT assessment. While the delay due to human error was considered significant and serious, the tax at stake was significant and HMRC’s remit was to collect the right amount of tax.

• Ms Guerlain-Desai (the taxpayer) purchased a property for £3.16m which included a mature woodland.
• The SDLT return was filed on the basis that the property was entirely Residential Property.
• Later, an Amended SDLT Return was filed on the basis that the 12 acres of mature woodland was not residential property and a refund of £225k was made to the taxpayer.
• HMRC enquired and issued closure notices on the basis that the whole transaction was of residential property and the refund should be repaid.
• A Statutory Review upheld this decision and gave a 30-day window to appeal.
• An Appeal was lodged 42 days late and denied by HMRC.
• The taxpayer appealed to the FTT to allow the Late Appeal.

The FTT found that:

• The principles in Martland should apply.
• The length of the delay was both serious and significant as:
  • The review letter reminded the taxpayer of the appeal window.
  • The delay of 42 days should be viewed in the context of a 30-day appeal window.
• There was no good reason for the delay as it was down to human error on behalf of the taxpayer’s advisors.
• Other circumstances considered in this case included:
  • The appeal was brought about as soon as the error was identified.
  • Mistakes happen and there was a process in place which picked it up relatively quickly.
  • The tax at stake was not insignificant for the individual.
  • While HMRC would have to defend the appeal if allowed, their task is to collect the correct amount of tax.
• On balance, the FTT exercised its discretion to allow the late appeal.

The appeal was allowed.

Useful guides on this topic

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

SDLT: Amending returns & refunds
How do I amend an SDLT return?  When can I amend an SDLT return?  How do I claim an SDLT refund?  How do I deal with contingent consideration?

SDLT: Residential property & dwellings
What is residential property for Stamp Duty Land Tax (SDLT)? What tax rate applies? What garden and grounds are subject to higher rates of SDLT?

Statutory Review (by HMRC)
What is a Statutory Review? Is it automatic? What happens in a Statutory Review? Can you challenge a Statutory Review's findings? Can you influence a Statutory Review? 

External links

Marie Guerlain-Desai v HMRC [2023] TC8795