20108

DEFAULT  SURCHARGE – Appellant gravely ill – No return form received – Impractical to make electronic payment – Appeal allowed

LONDON TRIBUNAL CENTRE

	PAUL ANTHONY LUCAS	           Appellant

-	and –

	THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS 	 Respondents

				Tribunal:	MISS J C GORT (Chairman)
						MRS C E HOWELL

Sitting in public in Plymouth on 15 March 2007

Mr N T Harber, accountant, for the Appellant 

Mrs P Crinnion, advocate, for the Respondents

© CROWN COPYRIGHT 2007

DECISION

1.	This is an appeal against a default surcharge for the period 05/06 in the sum of £1,145.08.  The surcharge had been paid at the rate of 15%.  

2.	The due dates for the return in question was 30 June 2006. It was the Appellant’s practice to send all his business records to his accountant, Mr Harber, at the end of every month.  At the end of the third month the accountant was then in a position to instruct the Appellant how to complete his VAT return. During the summer of 2006 Mr Lucas, the Appellant, was suffering from bladder cancer and was very ill.  He was undergoing a course of chemotherapy.

3.	The Appellant and his wife run an Inn called the Oxenham Arms near Okehampton in Devon. It requires a lot of hard work from both the Appellant and his wife. Therefore when the Appellant was ill, a huge burden fell upon his wife. The Inn itself is run as a partnership by the Appellant and his wife. It is situated some five miles from Okehampton, where the shopping is done. The Inn has eight bedrooms and can dine thirty. Neither the Appellant nor his wife had had a day off in the previous five years.  

4.	Mr Harber had refrained from contacting the Appellant until 29 June, because he had not wished to disturb him whilst he was ill and undergoing treatment. It was only then that Mr Harber learned that the return form had not been sent by the Commissioners to the Appellant. Mr Harber himself immediately rang the Commissioners’ advice service and asked for a return to be sent.  In the meantime the Appellant had signed and dated a cheque on 29 June for the full amount.  Because the return itself had not turned up, the Appellant had not sent off the cheque because he understood that the Commissioners would not receive the cheque without the accompanying return. Both Mr Harber and Mrs Lucas contacted the Commissioners by telephone. The records show that Mrs Lucas was advised that payment could be made by CHAPS. Alternatively a payment could have been made by BACS.  However, this would have necessitated Mrs Lucas going into Okehampton to make the arrangements. This was not considered by the Appellant to be either feasible or necessary.  

5.	Given that the originating cause of the failure to pay the tax was occasioned by the failure either of the Post Office to deliver, or of the Commissioners to send, the return, and that the subsequent failure arose because of Mr Lucas’ extreme illness, and given also that, had it not been for his illness, he would have chased up the missing return, the Tribunal held that there was a reasonable excuse for the late payment of this return, which was in any event received on 7 July 2006, only a week late, the Tribunal allowed the appeal and announced its decision at the hearing.  We also considered it right that the Respondent should pay the Appellant’s cost of and relating to this appeal.

MISS J C GORT
CHAIRMAN

RELEASED: 19 April  2007

LON/2006/1125