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Procedure.Tax
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J7: Late appeals and challenges
Late notice of direct tax appeal to HMRC (HMRC or Tribunal permission)
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Income tax, CGT and corporation tax
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"(1) This section applies in a case where—
(a) notice of appeal may be given to HMRC, but
(b) no notice is given before the relevant time limit.
(2) Notice may be given after the relevant time limit if—
(a) HMRC agree, or
(b) where HMRC do not agree, the tribunal gives permission.
(3) If the following conditions are met, HMRC shall agree to notice being given after the relevant time limit.
(4) Condition A is that the appellant has made a request in writing to HMRC to agree to the notice being given.
(5) Condition B is that HMRC are satisfied that there was reasonable excuse for not giving the notice before the relevant time limit.
(6) Condition C is that HMRC are satisfied that request under subsection (4) was made without unreasonable delay after the reasonable excuse ceased." (TMA 1970, s.49(1) - (6))
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"(8) In this section “relevant time limit”, in relation to notice of appeal, means the time before which the notice is to be given (but for this section)." (TMA 1970, s.49(8))
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IHT
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"(1) This section applies in a case where—
(a) notice of appeal may be given to HMRC under section 222, but
(b) no notice is given before the relevant time limit.
(2) Notice may be given after the relevant time limit if—
(a) HMRC agree, or
(b) where HMRC do not agree, the tribunal gives permission.
(3) If the following conditions are met, HMRC shall agree to notice being given after the relevant time limit.
(4) Condition A is that the appellant has made a request in writing to HMRC to agree to the notice being given.
(5) Condition B is that HMRC are satisfied that there was reasonable excuse for not giving the notice before the relevant time limit.
(6) Condition C is that HMRC are satisfied that request under subsection (4) was made without unreasonable delay after the reasonable excuse ceased.
(7) If a request of the kind referred to in subsection (4) is made, HMRC must notify the appellant whether or not HMRC agree to the appellant giving notice of appeal after the relevant time limit.
(8) In this section “relevant time limit”, in relation to notice of appeal, means the time before which the notice is to be given (but for this section)." (IHTA 1984, s.223)
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Request must be made without unreasonable delay
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See Condition C.
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“It is of note that the comparison is with a reasonable taxpayer (using this term as shorthand in the manner set out above and in Perrin). The reasonableness of the delay therefore has to take into account the need for the taxpayer to have regard to his rights and obligations as regards HMRC. It is therefore not enough to consider only the reasonableness of Mr Twaite’s actions as between him and Close.” (Twaite v. HMRC [2017] UKFTT 591 (TC), §56, Judge Chapman).
HMRC not restricted to certain reasons for extending time limit
“What HMRC ignore or overlook is that while, before 2009, s 49 TMA, as it then was, only appeared to allow HMRC to accept a late notice of appeal to be given if the appellant had a reasonable excuse for the lateness, two changes affected that position. Firstly in 2006 in Advocate-General for Scotland v General Commissioners for Aberdeen City [2006] STC 1218 (“Aberdeen GCs”), Lord Drummond Young had held in the Outer House of the Court of Session that HMRC were not limited to considering the question of reasonable excuse, but could consider all the same matters as the appellate tribunals which included other matters such as prejudice to either party. Secondly, in 2009, s 49 as originally enacted was substituted by a new version which provided that if there was a reasonable excuse HMRC were bound to admit the giving of notice, but did not otherwise limit the freedom of action of HMRC. So it did not, any more than the original version of s 49 TMA, prevent HMRC from continuing for example with their invariable practice before 2009 of overlooking a few days or weeks of lateness (see in this regard the affidavit of the Inspector in R v Special Commissioners of the Income Tax Acts, ex parte Magill [1981] STC 479 at p 484).” (Patrick v. HMRC [2015] UKFTT 508 (TC), §42).
HMRC must reply
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"(7) If a request of the kind referred to in subsection (4) is made, HMRC must notify the appellant whether or not HMRC agree to the appellant giving notice of appeal after the relevant time limit." (TMA 1970, s.49(7))
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Late notice to Tribunal following review
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"(3) If the post-review period has ended, the appellant may notify the appeal to the tribunal only if the tribunal gives permission." (TMA 1970, s.49G(3))
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"(3) If the post-review period has ended, the appellant may notify the appeal to the tribunal only if the tribunal gives permission." (IHTA 1984, s.223G(3))
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Procedure for seeking permission from the Tribunal
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Notice of appeal must request permission and give reasons
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“(4) If the notice of appeal is provided after the end of any period specified in an enactment referred to in paragraph (1) but the enactment provides that an appeal may be made or notified after that period with the permission of the Tribunal--
(a) the notice of appeal must include a request for such permission and the reason why the notice of appeal was not provided in time; and
(b) unless the Tribunal gives such permission, the Tribunal must not admit the appeal.” (FTT Rules, r.20(4)).
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Permission from Tribunal (for late notice to HMRC or Tribunal)​
Tribunal power unconstrained
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“It will be seen that, although s 49 makes provision that HMRC are required to accept a late notice of appeal where certain conditions are satisfied, and in particular where HMRC is satisfied that there was a reasonable excuse for the delay, no such provision is made in respect of the FTT.” (O’Flaherty v. HMRC [2013] UKUT 0161 (TCC), §26).
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