Qureshi
| Jurisdiction | UK Non-devolved |
| Judgment Date | 06 March 2018 |
| Neutral Citation | [2018] UKFTT 115 (TC) |
| Date | 06 March 2018 |
| Court | First Tier Tribunal (Tax Chamber) |
[2018] UKFTT 0115 (TC)
Judge Geraint Jones Q. C., Mr. Christopher Jenkins
The appellant appeared in person
Miss Olivia Donovan, instructed by the General Counsel and Solicitor to HM Revenue and Customs, appeared for the respondents
Income tax – Self-assessment – Late filing – Proof of requirements of TMA 1970, s. 8 – Burden of Proof in Penalty cases – When inferences are permissible – R v Hedgcock: Court of Appeal Criminal Division [2007] EWCA Crim 3486 applied.
The First-tier Tribunal (FTT) allowed a taxpayer's appeal against self-assessment tax return late filing penalties, finding that HMRC had not proved, on the balance of probabilities, that the necessary notices to file had been sent to the taxpayer.
Mrs Qureshi (the appellant) appealed against late filing penalties imposed on her by HMRC for the alleged late filing of her self-assessment tax returns for the 2 years ended 5 April 2015. The appellant had twice advised HMRC that she had not received any notice requiring her to file self-assessment returns and therefore HMRC were on express notice that that was the appellant's position.
The FTT noted that as the appeals were in respect of penalties, art. 6 of the European Convention on Human Rights (right to a fair trial) applied and accordingly HMRC bore the onus of proving that the penalties had been justly imposed based on admissible evidence. When the FTT pointed out to HMRC that it was incumbent on them to prove that a notice to file, as required by TMA 1970, s. 8, had been sent to the appellant, HMRC sought to deflect the need to adduce proper evidence by informing the FTT on such evidential matters that “HMRC has an understanding with the Courts and Tribunals”. The FTT made it “clear beyond doubt” that HMRC, as a litigant, held no privileged position and while noting that witness evidence, documents, hearsay evidence and evidence of systems could all potentially be admissible adequate evidence was “a necessity; not a luxury”.
The FTT did not consider the “evidence” adduced by HMRC to be anywhere near sufficient to prove, on the balance of probabilities, that HMRC had sent the appellant a notice to file within the meaning of TMA 1970, s. 8. The production of a “Return Summary” sheet showing “Return Issued date” with a date appearing alongside, was not adequate to allow the FTT to infer that any notice to file was in fact put into the post by HMRC with the postage prepaid, properly addressed to the appellant. The FTT arrived at that conclusion applying the stringent requirements for drawing inferences (or making secondary findings of fact) from established primary facts, as held in R v Hedgcock: Court of Appeal Criminal Division [2007] EWCA Crim 3486.
The FTT found that it had not been proved, on the balance of probabilities, that the necessary notices to file had been sent to the appellant, and accordingly it allowed the appeal in full and quashed the penalties.
HMRC suggested that they had some kind of special privilege when the need for adequate evidence was being considered by a court or tribunal. The FTT gave “no credence whatsover” to this assertion and said that it was “frankly incredible” that the respondents would seek to have or expect to have any kind of privileged position in litigation before the courts or tribunal.
[1] The appellant, Mrs Qureshi, appeals against penalties imposed upon her by The Commissioners for Her Majesty's Revenue and Customs (“the respondents”) in respect of alleged late filing of self-assessment tax returns for the fiscal years ended 5 April 2014 and 5 April 2015.
[2] In two separate letters sent by the appellant to the respondents, respectively dated 29 January 2017 and 10 July...
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Belloul
...the SA Notes merely evidence the contact that HMRC have had with Mr Edwards over the years. [49] Mr Ripley referred us to Qureshi [2018] TC 06372, a decision of the FTT where the Tribunal declined to accept similar evidence as sufficient to demonstrate that notices to file had been sent to ......
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...too far to draw an inference from an inference in my view. I should have reached this decision on either the test as set out in Qureshi [2018] TC 06372 and approved in Edwards v R & C Commrs [2019] BTC 516 or the modified version proposed by Mr Gordon in Taxation. [34] I have reviewed the a......