[2011] UKFTT 259 (TC)
TC01123
Appeal number:
TC/2011/00378
Reasonable excuse.
FIRST-TIER TRIBUNAL
TAX
LOUISE
FERNANDEZ Appellant
-
and -
THE
COMMISSIONERS FOR HER MAJESTY’S
REVENUE
AND CUSTOMS Respondents
TRIBUNAL:
GERAINT JONES Q. C. (TRIBUNAL JUDGE)
The Tribunal determined the
appeal on 14 April 2011 without a hearing under the provisions of Rule 26 of
the Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 (default
paper cases) having first read the Notice of Appeal dated 09 January 2011 and
HMRC’s Statement of Case submitted on 17 February 2011.
© CROWN COPYRIGHT
2011
DECISION
1. The
appellant, this Fernandez, appeals against two late filing penalties, each in
the sum of £100, levied by HMRC on the basis that she failed to file her self
assessment tax return for the year ended 5 April 2009 by 31 January 2010 (the
first £100 penalty) and then within a further period of six months (the second
£100 penalty).
2. The
primary facts are not in dispute. The appellant does not dispute that she did
not file her self-assessment return by the 31 January 2010. Instead, she
submitted a paper return on 3 December 2010, some 11 months after the last
filing date.
3. Nonetheless,
says the appellant, she has a reasonable excuse for late filing. HMRC contends,
wrongly, that a "reasonable excuse" must amount to some kind of exceptional
circumstance or event beyond the control of the taxpayer. I do not accept that
legal analysis. Parliament has quite clearly used the phrase "reasonable
excuse". Those are ordinarily everyday English words which must be given
their ordinary and natural meaning. Their ordinarily natural meaning is not
that there has been an exceptional event outside the control of the taxpayer.
4. The
appellant's case is that towards the end of January 2010 she attempted to file
her tax return online. That evidence is supported by her e-mails of 13 and 15 January
2010, the first timed at 18:34 hours, where she said that she had attempted to
use the online filing facility provided by HMRC but found herself denied access
to the site. She said that she had been sent access codes by HMRC but they did
not facilitate access.
5. As
the appellant had had difficulty using the online filing facility she sent
e-mails to [email protected]
seeking assistance. There is no evidence that she ever received a reply. In
HMRC’s Case Statement it is asserted that the appellant sent her e-mails of the
13 and 15 January 2010 to the VAT Online Services Helpdesk "in
error". Quite why there was any error in using the e-mail address to which
I have referred, I do not understand. HMRC is one organisation and unless it
adequately made it clear that the address used by the appellant would not
elicit a response to her request for assistance, I find the comment in the Case
Statement wholly unconvincing and misconceived.
6. HMRC
further contends that it was the appellant's responsibility to ensure that her
tax affairs were dealt with correctly and on time. It argues that that
responsibility was not negated by the appellant sending her two e-mails to the
helpdesk. It also contends that it could not reasonably be expected to reply to
the appellant's e-mails prior to the 31 January 2010. I find that proposition
startling. I have little doubt that HMRC would expect a business to which it
had sent correspondence, both to be able to reply within 14 days and actually
to reply. There is no reason why the standards applicable to businesses and
commercial organisations should not also apply to an organ of the state.
7. Whilst
it may have been the appellant's responsibility to file her self assessment
return on time, it was equally the responsibility of HMRC to provide online
filing facilities that worked and provided the promised filing facility. I
accept the appellant's evidence that so far as she is concerned, the promised
online filing facility did not work and allow her to file on time. I am wholly
unimpressed by the argument that there was no obligation on HMRC to reply to
the appellant's e-mails to its helpdesk; there is little point in there being a
helpdesk if, in fact, it does not provide help. The appellant was, in my
judgement, entitled to expect that the requested help would be forthcoming
timeously and, in any event, in good time for her to be able to use the online
filing facility by 31 January 2010.
8. In
my judgement the appellant had a reasonable excuse for failing to file online
by the 31 January 2010. That reasonable excuse was/is that the online filing
facility provided by HMRC did not work as it should have worked when she tried
to use it and, furthermore, HMRC failed to provide her with the help that she
had requested within a reasonable time which, in my judgement, should have been
within three days.
9. The
second £100 penalty was triggered because the return had still not been filed
some six months later. I cannot conceive that the reasonable excuse to which I
have referred above could possibly apply to the continued failure to file. It
must have been apparent to the appellant that she had not received a reply from
the helpdesk and thus she would have to go to other lengths to file her return.
She did not do so, being satisfied to sit back and await events. That comes
nowhere near to presenting a reasonable excuse.
10. In the result I
allow the appellant's appeal against the first £100 penalty; I dismiss the
appellant's appeal against the second £100 penalty.
11. This document
contains full findings of fact and reasons for the decision. Any party
dissatisfied with this decision has a right to apply for permission to appeal
against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal)
(Tax Chamber) Rules 2009. The application must be received by this Tribunal
not later than 56 days after this decision is sent to that party. The parties
are referred to “Guidance to accompany a Decision from the First-tier Tribunal
(Tax Chamber)” which accompanies and forms part of this decision notice.
TRIBUNAL JUDGE
RELEASE DATE: 19 APRIL 2011
