Biazussi v Revenue and Customs (INCOME TAX/CORPORATION TAX : Penalty) [2017] UKFTT 763 (TC)
FTT-Tax
Biazussi v Revenue and Customs (INCOME TAX/CORPORATION TAX : Penalty)
[2017] UKFTT 763 (TC) · 2017-10-13
[22]HMRC have confirmed that they did consider whether there were any special circumstances in this case and concluded that there are none. They have patently considered all relevant circumstances.23. I did consider whether HMRC had acted in a way that no reasonable body could have acted, or whether they took into account some irrelevant matter or disregarded something to which they should have given weight. I think not. I have also considered whether HMRC have erred on a point of law. They have not. I find no reason to disagree with their conclusion. HMRC’s decisions in that regard are not flawed when considered in light of the principles applicable in proceedings for judicial review. General24. Parliament has laid down a deadline for submission of tax returns and has provided for penalties in the event of default. Although those penalties have been described by some as harsh, nevertheless they are widely held to be proportionate. In this instance they are within the bounds of proportionality. Furthermore HMRC v Anthony Bosher [5] makes it clear that I do not have the jurisdiction to consider the proportionality of fixed penalties such as those charged in this appeal. I am bound by that decision and have no discretion.25. The decision of the Upper Tribunal in HMRC v Hok [6] is binding on me and that makes it explicit at paragraph 58 that this Tribunal has no jurisdiction to discharge penalties on the ground that their imposition was unfair.26. The £100 and two £300 penalties are therefore confirmed. Daily Penalties27. That leaves the daily penalties. This appeal was stayed behind Donaldson v HMRC [7] . I do not think that the appellant could reasonably be expected to be aware of the finer detail of Donaldson . In their submission HMRC refer extensively to that decision stating in particular that:- “HMRC submit that following the Court of Appeal decision the Tribunal should find that in the present appeal HMRC have satisfied the requirements of paragraph 4(1)(b) and 4(1)(c) and despite the omission of the correct period for which daily penalties had been assessed in the notice of assessment under paragraph 18, the omission does not affect the validity of the notice”.28. That is a submission. It is not evidence. The Statement of Case does not focus in any way on how the requirements of those paragraphs have been met in the appellant’s case. Crucially in Donaldson , Mr Donaldson had received an “SA Reminder” (after the deadline for submitting a paper return had expired) that informed him that daily penalties would be charged if his return was not filed by 31 January 2012. He also received a SA 326D Notice informing him of the first £100 fixed penalty and warning that if the return was more than three months late, daily penalties would be charged. Those documents were sufficient to constitute notices to Mr Donaldson that complied with paragraph 4(1)(c) of Schedule 55. It is with that with which I am concerned. 29. In this instance, whilst I can see that the appellant was notified of the £100 penalty, HMRC have not asserted that the appellant received an “SA Reminder” in similar terms to that considered in Donaldson . They have not asserted that he received a “SA 326D Notice” in a form similar to that in Donaldson and nor have they included in the Statement of Case the actual text of the Notice notifying the appellant of the £100 penalty (or a document that is expressed to be a standard form of such a penalty notice at the relevant time). 30. HMRC have the burden of proving that daily penalties are chargeable and although the appellant has not taken the point, it is clear from Burgess and Brimheath Limited v HMRC [8] that HMRC must prove their case, even if the appellant has not taken the point. I find that they have not established that there has been compliance with paragraph 4(1)(c) of Schedule 55. Accordingly the daily penalties are not chargeable. Decision 31. The appeal is therefore dismissed in part and the late filing penalties of £100 and £300 are confirmed. The daily penalties of £900 are not confirmed. 32. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. ANNE SCOTT TRIBUNAL JUDGE RELEASE DATE: 17 OCTOBER 2017 [1] [2006] STC (SCD) 536 [2] [1991] VTTR 234 [3] [2012] UKFTT 315 (TC) [4] [1971] 3 All ER 967 [5] [2013] UKUT 579 (TCC) [6] [2012] UKUT 363 (TCC) [7] [2016] EWCA Civ 761 [8] [2015] UKUT 578 (TCC)