Chapter DMBM665830

Published date29 April 2016
Record NumberDMBM665830
CourtHM Revenue & Customs

Where you are taking proceedings for a Revenue determination, the defendant may submit a defence on the grounds that a lesser figure is due. The defendant may have already filed a tax return or have promised that they, or their agent, will do so. This type of defence can be used as a tactic to delay payment further.

Some judges have been known to accept this argument and, because of this, do not give judgment at a hearing but instead order the defendant to file returns by a particular date.

Self assessment not filed at time of hearing

If a return has not been filed, but the defendant claims that when filed it will show that a lesser amount is due, you should seek judgment in full. You should advise the judge and the defendant:

  • that the determination amount remains due until the return is filed and captured
  • when the return(s) should have been filed by to illustrate the extent of the defendant’s default.

The defendant:

  • is personally responsible under Section 9 Taxes Management Act 1970 to provide a self assessment of his income and gains
  • has the right under Section 59A(4) Taxes Management Act 1970 to make a claim to adjust the payment on account.

Nevertheless the judge may not be prepared to enter judgment in full and may be minded to adjourn the hearing whilst ordering the defendant to file the return(s) by a particular date. If so, you should ask the judge to consider making an order for interim payment of any amount the defendant admits will be due, with an order that if the defendant fails to file the return(s) by a specified date then you (as claimant) will be entitled to judgment for the balance of the claim.

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Self assessment filed but not processed at time of defence hearing

Ensure that Customer Ops recognise the urgency and importance of capturing the return(s) and ask them to process the return(s) as a matter of urgency.

At the defence hearing you should:

  • try to obtain judgment in full
  • point out that until such time as the Inspector is satisfied that the return, which was submitted late, is correct, the determination remains payable.

You should assure the judge, and the defendant, that should the return show a lesser amount payable, you will only seek to recover the lesser amount, together with interest thereon, and the court fee. However, in practice, you will frequently find that judges are reluctant to enter judgment in these circumstances.

If you cannot secure judgment in full at the first hearing, you should ask for:

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