19982
Application of the Appellant to set aside decision of tribunal - Vat Tribunals Rules 1986 s. 26(3) - application submitted outside period of 14 days from release of decision - representative attended to put case to restore appeal - illness and death of Appellant's wife referred to though not mentioned prior to appeal decision - Rule 19 applied - reasons put forward for decision of previous tribunal to be set aside not accepted - application dismissed - costs awarded to Customs
MANCHESTER TRIBUNAL CENTRE
THOMAS AQUINAS BRENNAN Appellant
- and -
THE COMMISSIONERS FOR
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Tribunal: Elsie Gilliland (Chairman)
Sitting in public at York on 7 December 2006
David Simmons for the Appellant
Lisa Linklater Counsel instructed by the Acting Solicitor for HM Revenue and Customs
for the Respondents
© CROWN COPYRIGHT 2006
DECISION
- The application of the Appellant (the proprietor of a public house) is that the decision of the tribunal comprising a different Chairman and a member (the appeal tribunal) which was released on 14 July 2006 subsequent to the hearing on 12 June 2006 of an appeal against an assessment be set aside.
- On that occasion there was no attendance by or on behalf of the Appellant and today's application is made under Rule 26(3) of the Value Added Tax Tribunals' Rules 1986 (the Rules).
3. That rule provides that a tribunal may set aside such a decision "on such terms as it thinks just" on an application by the non-attending party served within 14 days after the date when the decision of the tribunal was released.
- The Appellant's representative David Simmons of Public Business Services (UK) Ltd. (PBS) Accountants has presented his case. It is accepted by Mr. Simmons that such notice of application was not submitted within the stated time limit. It was not until a letter dated 9 October 2006 addressed to the tribunal centre was sent by him that a request for the appeal to be " further considered "was received.
- In his letter Mr. Simmons wrote to the tribunal that copy papers which he understood from the tribunal centre had been sent had not "for whatever reasons" been received. He went on to comment that that the delays which had led to an adjournment being given had been unacceptable; and that the reason for the long delays had been due to the illness and subsequent death of the Appellant's wife. He acknowledged also that unnecessary costs had been incurred by the Respondents.
- The letter relates back to the strongly worded decision of the appeal tribunal. It outlined a history of delay on the part of the Appellant in dealing with procedural matters, failure to supply information when requested and an unwillingness on the part of the Appellant to cooperate with the enquiries of the officer for Customs "because he knew that his Vat returns were inaccurate." In the final paragraph it was stated to be the considered view of the appeal tribunal that the Appellant had "abused the Tribunal procedure by deliberately failing to attend on two occasions." The Appellant was required to pay costs to Customs of £800.
- At today's hearing Mr. Simmons has acknowledged that some delays had been the fault of the party but some also related to the illness and death of the Appellant's wife from which he was still recovering.
- Although the 14 day time limit was not complied with I have been prepared to look at the circumstances and consider whether it would be appropriate under Rule 19 of the Rules to extend the time for service of the notice of application to ensure " the speedy and just determination" of the appeal.
- I do not find it plausible however that correspondence from Customs failed to reach business premises; nor have I seen any evidence as to postal delays or difficulties. Further whilst sadly Mrs. Brennan died I have not been able to find a reference to her illness and death in the paperwork before the appeal tribunal or prior to that hearing as contributing to the failures on the part of the Appellant. Nor was the date of death of Mrs. Brennan nor the period of her illness given in the letter from Mr. Simmons though I understand from evidence today that the Appellant's wife died on 29 January 2006 over four months before the June hearing date.
- Mr.Simmons has informed the tribunal that he and his client are seeking to do a more detailed exercise and has criticised the short test period of two weeks used by Customs. This latter point was however considered in some detail by the appeal tribunal and referred to in its decision.
- The application of the Appellant to set aside the appeal tribunal's decision is for the reasons indicated in paragraph 9 above dismissed.
- Counsel for Customs sought costs in view of the additional costs incurred in respect of the application outside the 14 day time limit. I direct the Appellant to pay Customs' costs of £150 (plus Vat) for Counsel's fees.
.
ELSIE GILLILAND
CHAIRMAN
Release date: 10 January 2007
MAN/05/426
