Bartram
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 July 2011 |
| Neutral Citation | [2011] UKFTT 471 (TC) |
| Date | 14 July 2011 |
| Court | First Tier Tribunal (Tax Chamber) |
[2011] UKFTT 471 (TC)
Charles Helllier (Judge) (Chairman), Nigel Collard
Peter Clarke of Clarke & Co for the Appellant
PS Maffia for the Respondents
Income tax - determination under Taxes Management Act 1970 section 28Cs. 28C TMA - whether right of appeal to the tribunal - held: no
1.The Commissioners of Her Majesty's Revenue and Customs ("HMRC") made determinations under Taxes Management Act 1970 section 28Csection 28CTaxes Management Act 1970 for the years to 5 April 2006, 2007 and 2008.
2.On 4 October 2010 Mr Bartram submitted a notice of appeal against these determinations. The grounds of appeal were that the determinations were unlawful because they did not comply with section 28C.
3.The Respondents submit that the Tribunal has no jurisdiction to hear this appeal.
4.This hearing was listed to determine: (a) the question of jurisdiction, and, (b) if we concluded that we had such jurisdiction, whether the appeal should be admitted late. If we decide both those questions in the Appellant's favour the appeal would then be listed for a substantive hearing of the grounds of appeal.
5.Taxes Management Act 1970 part IVPart IVTaxes Management Act 1970 ("TMA") is headed Assessment and Claims. Sections 28A and 28B deal with the closure of an enquiry into a tax return and consequent amendments to the return; section 28C permits HMRC to make a "determination" where no return has been delivered; section 29 permits the making of assessments where HMRC discover that tax has not been assessed; section 30A and 30B deal with "assessing procedure" and partnership discovery assessments and section 31 to 31B with appeals. Later sections deal with claims, errors and time limits.
6.Section 28C, so far as relevant to this appeal, provides that:
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(1)This section applies where-
(a) a notice has been given to any person under section 8 or 8A of this Act (the relevant section),
(b) and
(c) the required return is not delivered on or before the filing date.
(1A)An officer of the Board may make a determination of the following amounts to the best of his information and belief, namely-
(a) the amounts in which the person who should have made the return is chargeable to income tax and capital gains tax for the year of assessment, and
(b) the amount which is payable by him by way of income tax for that year;
and subsection (1AA) of section 8 … applies for the purposes of subsection (1) of that section [section 9(1AA) provides for allowances and reliefs and claims to be deducted in determining the amount chargeable to tax and that the amount of tax payable is to be determined after deducting any tax paid at issue].
(2)Notice of any determination under this section shall be served on the person in respect of whom it is made and shall state the date on which it is issued.
(3)Until such time (if any) as it is superseded by a self-assessment made under section 9 of this Act … on the basis of information contained in a return under the relevant section, a determination under this section shall have effect for the purposes of Parts VA, VI, IX and XI of this Act as if it were such a self assessment.
(4)Where-
(a) proceedings have been commenced for the recovery of any tax charged by a determination under this section; and
(b) before those proceedings are concluded, the determination is superseded by such a self-assessment as is mentioned in subsection (3) above,
those proceedings may be continued as if they were proceedings for the recovery of so much of the tax charged by the self-assessment as is due and payable and has not been paid.
(5)No determination under this section, and no self-assessment superseding such a determination, shall be made otherwise than-
(a) before the end of the period of five years beginning with the filing date; or
(b) in the case of such a self-assessment, before the end of the period of twelve months beginning with the date of the determination.
(6)In this section "the filing date" means...
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Bartram v Revenue and Customs Commissioners
...fact, decided that it had no jurisdiction to consider an appeal against a s. 28C determination and struck out the notice of appeal ([2011] UKFTT 471 (TC); [2011] TC 01321). The FTT indicated that, if a taxpayer thought that a determination was wrong, he could put in a tax return, or could a......
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Moyes
...and Prince the FTT found that not every substantive determination is an "assessment". It also noted that in the FTT case of BartramTAX[2011] TC 01321 (with which the UT agreed) the potential lack of a remedy (other than judicial review proceedings) was not a reason for finding that a substa......
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Crest Nicholson (Wainscott) and Others
...was no right of appeal against a determination. Miss McCarthy referred to the decisions of the First-tier and Upper Tribunals in Bartram [2011] TC 01321, and [2012] BTC 1,614 respectively). The relevant part of the First-tier Tribunal's decision was at [28]–[35] and the relevant passage in ......
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Crest Nicholson (Wainscott) and Others
...was no right of appeal against a determination. Miss McCarthy referred to the decisions of the First-tier and Upper Tribunals in Bartram [2011] TC 01321, and [2012] BTC 1,614 respectively). The relevant part of the First-tier Tribunal's decision was at [28]–[35] and the relevant passage in ......