“Applications for extensions of time limits of various kinds are commonplace and the approach to be adopted is well established. As a general rule, when a court or tribunal is asked to extend a relevant time limit, the court or tribunal asks itself the following questions: (1) what is the purpose of the time limit? (2) how long was the delay? (3) is there a good explanation for the delay? (4) what will be the consequences for the parties of an extension of time? and (5) what will be the consequences for the parties of a refusal to extend time. The court or tribunal then makes its decision in the light of the answers to those questions.” 10. Clearly the purpose of the time limits is to provide certainty and avoid delay in litigation. Given the requirement, under rule 12 of the Tribunal Procedure Rules (First-tier Tribunal)(Tax Chamber) Rules 2009 that where something is required to be done “it must be done by 5pm on that day”, the Application which was filed and served at 19:34 on25 July 2017 was two days late. The reason or explanation advanced to explain the delay is that “it might have been avoided had the appellant received a reply to its email of8 July 2017 . However, as I have noted, at paragraph 3 above HMRC did respond to that email in an email dated21 July 2017 . For the purposes of this case it is not necessary to consider the consequence of granting or not granting an extension of time, because, after hearing the arguments of both parties, as I explain below, I would have dismissed the Application in any event. 11. In the present case, although I accept that there was an element of confusion regarding the response to the request for further and better particulars, the directions were clear and unequivocal. Any application for consideration at the case management hearing listed for31 July 2017 was to be filed and served seven days before, ie by 17:00 on Monday24 July 2017 . Not only was the Application filed after 17:00 on25 July 2017 , making it two days late, but, contrary to the guidance of the Senior President, the explanation for the delay was provided in the covering letter to the application also filed and served on25 July 2017 . 12. Given the strict approach to compliance with directions, which was confirmed by the Supreme Court in BPP , that the appellant has had the benefit of specialist representation who would have been aware of such an approach and that it would have been possible for the Application (as well as any application to extend time for it to be admitted) to have been made within the directed timescale I do not consider it appropriate to admit it. 13. However, having heard argument in relation to the Application, in case of any further appeal and although not strictly necessary, I shall briefly explain why I would have dismissed the Application in any event. 14. Dealing with the matters in the order raised in the Application: 1. Debarring 15. Although Mr McGurk is correct when he says that Judge Dean considered and dismissed an application that HMRC be debarred from taking any further part in the proceedings, Mr Howard explained that the present application arises out of my decision of22 June 2017 and HMRC’s responses to the further and better particulars, in particular the following: Request 1: Statement of Case Paragraph 1 Of; “ For the avoidance of doubt, HMRC contends that the monies lodged in the Appellant’s UK bank accounts relate to taxable supplies in the UK. ”
“ Supply chains have been traced to tax losses, and HMRC contend, instead, that the deposits related to taxable sales of goods made by on behalf of the Appellant in the UK. ”
“HMRC made various assessments to VAT in respect of goods which they considered that the Appellant has sold/traded within the United Kingdom”
“… taxable sales of goods made by or on behalf of the Appellant in the UK.”
“HMRC’s case is that the Appellant’s goods were only sold for consideration in the UK and that that consideration was what comprised the deposits in the Appellant’s UK bank accounts. Those supplies were, to that extent, made on behalf of the Appellant.” 18. Although Mr Howard or those instructing him would not have been aware, the form of the responses to the further and better particulars arises from the oral application made on10 May 2017 by Mr Geraint Jones QC, who then appeared for the appellant, seeking clarification of the matters raised in the amended Statement of Case. He suggested in his oral application, which was subsequently made in writing, that if HMRC were unable to identify by whom it was alleged that taxable supplies had been made on behalf of the appellant to simply say so. 19. Having noted, at [24] of my decision of22 June 2017 , that the Tribunal in its decision of10 May 2017 had found that the amended Statement of Case “rather than representing a fundamental shift in HMRC’s position clarified it”, as the responses to the further and better particulars should be read in the context of that amended Statement of Case I do not consider that HMRC’s case is without foundation or that further amendment to that Statement of Case is necessary. 2. Best judgement 20. As Mr McGurk points out this is a new argument that has not been included in the appellant’s grounds of appeal and was not advanced before Judge Dean. However, the extent to which the HMRC Officers considered the information available before making the assessment under s 73 VATA is a question of fact for the substantive hearing rather than an application such as the present. 3. Amendment of Statement of Case 21. Although there was some argument as to whether the Tribunal had the power to direct a party to amend its pleadings, as opposed to provide further and better particulars (notwithstanding it was accepted earlier in the proceedings that the Tribunal did not have such power), it is not necessary to decide this issue. For the reasons above, in relation to debarring I do not consider that any amendment to the amended Statement of Case is necessary. 4. Removal of References to fraud in Statement of Case etc. 22. To the extent that this was an attack on HMRC’s pleadings it has somewhat fallen away as a result of my observations above. In any event I consider such a “filleting” exercise would be a disproportionate use of Tribunal resources. As the Tribunal (Judges Berner and Walters QC) observed, albeit in relation to the exclusion of ‘opinion’ evidence in Megantic Services Limited v HMRC[2013] UKFTT 492 at [15] evidence: “… is not a matter of fact but a matter of opinion. It is merely a view of a witness on a matter on which the tribunal itself must reach its own conclusion, and as such is of no value as evidence. Such evidence may rightly be excluded on that basis. In most cases, however, we would not see it as necessary, or indeed proportionate, for a forensic exercise to be undertaken, either by the parties or by the tribunal, to identify any such matters in each witness statement and for the tribunal formally to direct that they be excluded. Generally speaking, we think that the parties can rely upon the good sense of the tribunal to disregard purported evidence that represents conclusions that the tribunal itself must reach. That can usually conveniently be the matter of submission at the substantive hearing, rather than a formal application to exclude.” 23. Clearly the same approach could be taken by the Tribunal in the present case, especially having heard the submissions of the parties on the subject. 5. Amended of supplemental witness statement 24. The admission of such a statement was sought in response to a further amended Statement of Case. However, as I have concluded that this is not necessary this part of the application falls away. 6. Documentary evidence of supplies to be treated as indicative sample 25. Mr Howard refers to the hundreds of lever arch files containing information in relation to “thousands” of sales and purchases in furtherance of the appellant’s trade. He says that unless there is some agreement between the parties it will be necessary for these documents to be admitted in their entirety to prevent subsequent allegations of “cherry picking”