TC03494: Wong Yau Lam and another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 15 April 2014 |
| Neutral Citation | [2014] UKFTT 359 (TC) |
| Date | 15 April 2014 |
| Court | First Tier Tribunal (Tax Chamber) |
[2014] UKFTT 359 (TC).
Judge Malachy Cornwell-Kelly, Mr Duncan McBride.
Mr Michael Feng of Feng & Co for the taxpayer
Ms Eleanor Gardiner of HMRC for the Crown
Failure to comply with information notice - Daily penalties - Finance Act 2008 ("FA 2008"), Finance Act 2008 schedule 36subsec-or-para 39Sch. 36, para. 39, schedule 36 subsec-or-para 4040 & schedule 36 subsec-or-para 4646 - Applicable time limits - Appeal dismissed.
[1]This appeal concerns daily penalties awarded against the taxpayers under schedule 36 subsec-or-para 40paragraph 40 of Schedule 36 to the Finance Act 2008 for failure to comply with an information notice, and the time limits applicable to them.
[2]An information notice under Finance Act 2008 subsec-or-para 1paragraph 1 of Schedule 36 to the 2008 Act was issued to the taxpayers on 20 June 2011. The notice was the subject of appeal to the tribunal which was dismissed: Lam[2012] TC 01813, full decision released on 8 February 2012. An application to appeal that decision was refused both by the first instance judge and by the Upper Tribunal on 17 December 2013 and 21 January 2014 respectively. The decision dismissing the appeal against the information notice gave the taxpayers until 8 April 2012 to comply with it; they have not complied with it in any respect to date.
[3]On 29 May 2013 the tribunal had also refused an application for a closure notice in respect of the inquiry giving rise to the information notice: Lam(TC2012/10443, 10445 & 11041). Paragraph 39 fixed penalties of £300 were awarded to each taxpayer on 19 December 2012 for failure to comply with the information notice and these were also the subject of an appeal to the tribunal, which was dismissed on 29 October 2013: Lam (TC/2013/02609 & 02610).
[4]On 25 June 2013, daily penalties for £60 were awarded to each taxpayer in these terms:-
The penalty is £60 a day from 19 December 2012 to 24 June 2013. This is a total of 186 days. The total amount of the penalty is £11,160. The law covering this penalty is in schedule 36 subsec-or-para 40paragraphs 40 and schedule 36 subsec-or-para 4646 of Schedule 36 to the Finance Act 2008.
This is the only matter under appeal, all previous matters having been determined.
(1)An assessment or determination, warrant or other proceeding which purports to be made in pursuance of any provision of the Taxes Acts shall not be quashed, or deemed to be void or voidable, for want of form, or be affected by reason of a mistake, defect or omission therein, if the same is in substance and effect in conformity with or according to the intent and meaning of the Taxes Acts, and if the person or property charged or intended to be charged or affected thereby is designated therein according to common intent and understanding.
(2)An assessment or determination shall not be impeached or affected-
(a) by reason of a mistake therein as to-
(i) the name or surname of a person liable, or
(ii) the description of any profits or property, or
(iii) the amount of the tax charged, or
(b) by reason of any variance between the notice and the assessment or determination.
(2)For the purposes of this Act, a person shall be deemed not to have failed to do anything required to be done within a limited time if he did it within such further time, if any, as the Board or the tribunal or officer concerned may have allowed; and where a person had a reasonable excuse for not doing anything required to be done he shall be deemed not to have failed to do it unless the excuse ceased and, after the excuse ceased, he shall be deemed not to have failed to do it if he did it without unreasonable delay after the excuse had ceased.
[6]Finance Act 2008 Schedule 36
(1)This paragraph applies to a person who-
(a) fails to comply with an information notice, or
(b) deliberately obstructs an officer of Revenue and Customs in the course of an inspection under part 2 schedule 36Part 2 of this Schedule that has been approved by the tribunal.
(2)The person is liable to a penalty of £300.
(3)The reference in this paragraph to a person who fails to comply with an information notice includes a person who conceals, destroys or otherwise disposes of, or arranges for the concealment, destruction or disposal of, a document in breach of paragraph 42 or 43.
(1)This paragraph applies if the failure or obstruction mentioned in paragraph 39(1) continues after the date on which a penalty is imposed under that paragraph in respect of the failure or obstruction.
(2)The person is liable to a further penalty or penalties not exceeding £60 for each subsequent day on which the failure or obstruction continues.
(1)Where a person becomes liable for a penalty under paragraph 39, 40 or 40A -
(a) HMRC may assess the penalty, and
(b) if they do so, they must notify the person.
(2)An assessment of a penalty under paragraph 39 or 40 must be made within the period of 12 months beginning with the date on which the person became liable to the penalty, subject to sub-paragraph (3).
(3)In a case involving an information notice against which a person may appeal, an assessment of a penalty under paragraph 39 or 40 must be made within the period of 12 months beginning with the latest of the following-
(a) the date on which the person became liable to the penalty,
(b) the end of the period in which notice of an appeal against the information notice could have been given, and
(c) if notice of such an appeal is given, the date on which the appeal is determined or withdrawn.
[7]European Convention on Human Rights
(1)In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances...
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