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Contact: michael.firth@taxbar.com
Procedure.Tax
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V1: Penalties (general)
Final assessment conclusive of tax due
"An assessment which can no longer be varied by the tribunal on an appeal notified to it or by order of any court is sufficient evidence, for the purposes of—
(a) the preceding provisions of this Part, and
(b) the provisions of Schedule 18 to the Finance Act 1998 relating to penalties,
that the amounts in respect of which tax is charged in the assessment arose or were received as stated in the assessment." (TMA 1970, s.101)
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Limit on tax geared penalties in respect of the same tax
"Where two or more penalties—
(a) are incurred by any person and fall to be determined by reference to any income tax or capital gains tax with which he is chargeable for a year of assessment;
each penalty after the first shall be so reduced that the aggregate amount of the penalties, so far as determined by reference to any particular part of the tax, does not exceed whichever is or, but for this section, would be the greater or greatest of them, so far as so determined." (TMA 1970, s.97A)
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"(1) This paragraph applies where a company incurs more than one penalty whose amount falls to be determined by reference to the tax payable by it for an accounting period.
(2) Each penalty after the first shall be reduced so that the total amount of the penalties, so far as determined by reference to any particular part of the tax, does not exceed whichever is, or but for this paragraph would be, the greater or greatest of them, so far as so determined." (TMA 1970, Sch 18, para 90)
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Extended meaning of deliberate does not apply
"[101]...(6) The Notes for Sch 24 refer repeatedly to the level of penalty being based on 'behaviours', with the most serious penalties being reserved for 'deliberate and concealed behaviours'. The Notes say that the concepts set out in the Schedule provide 'a uniform language for behaviours', and that 'where a person has taken reasonable care in completing their return …no penalty will arise'. In our judgment, this behaviour-based approach shows that the meaning of 'deliberate' cannot extend to purely mechanical errors, where there is no intention to mislead.
[102] We therefore find that that the FTT was correct in Auxilium to decide that 'a deliberate inaccuracy occurs when a taxpayer knowingly provides HMRC with a document that contains an error with the intention that HMRC should rely upon it as an accurate document'. Thus, 'deliberate' does not have the wide meaning in Sch 24 which the Court of Appeal has found to be the position for the purposes of the TMA, and which we consider is also the case for VATA s 77(4A).” (Leach v Revenue and Customs Commissioners [2019] UKFTT 352 (TC), Judge Redston)
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"[51] We note that the broader meaning of “deliberate” in Tooth is not applicable to a penalty." (Baig v. HMRC [2020] UKFTT 318 (TC), Judge Richard Chapman QC)
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