[100]“ Service of the claim form is a crucial step in the proceedings. The rules are designed to ensure, so far as possible, that the claim form is brought to the attention of the defendant, and where he is represented, his legal representatives.[101]If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence. If the claimant is misled by the defendant as to his residence, then the court is likely to hold that the claimant had reasonable grounds for his belief. In such circumstances, the court is likely to hold that there is a very good reason for the claimant's failure to serve within the 4 months period and to grant an extension of time under CPR 7.6(2). In such a case the defendant may even be estopped from denying that the address to which the document is sent is his last known residence. ” 53. In that case the Court held that there was no valid service of the claim form at an address which was not that of the defendant nor did the claimant have any reasonable basis to believe that the defendant resided at the address. It seems clear from the comments of the Court that one of the purposes of the legislation must be to ensure that the relevant person is aware of the notice or document being served. 54. The situation in this case is that the Appellant has no PPOB within the UK; the company is incorporated in the Bahamas. The issue is whether the notice was properly addressed. It seems to me that it cannot be ignored that the address provided on the SDLT return for the purchaser was that which HMRC used, namely the Prestbury address. I considered whether there is an obligation on HMRC to check or verify an address; the legislation places no further obligation on HMRC other than to properly address the notice to PPOB. No authorities were provided which address the situation, as in this appeal, where the taxpayer himself has provided the address used and which he later contends is incorrect and thereby invalidates the service. The accuracy of the return is the responsibility of the taxpayer and I take the view that HMRC are entitled to accept the information provided as accurate. On the information provided in the return the Appellant’s transaction was effected using the Prestbury address, and in that context it cannot be said that there was no reasonable basis for HMRC using the Prestbury address. For that reason I take the view that the notice was properly addressed and validly served. 55. Moreover the Appellant responded to the notice on 29 March 2016 as follows: “Your letter dated 1 March 2016 – proposed appeal The person who will be contacting you in this regard has been absent out of the country…legal advice is being sought…please take this as an appeal in the meantime…PS please advise the nature of your alleged discovery.” 56. The letter of 1 March 2016 was addressed to the Directors of Astar Services Ltd at the Prestbury address. It stated: “…I now enclose a discovery assessment for the correct amount of Stamp Duty Land Tax that should have been paid on the purchase of the property…” 57. The Discovery Assessment enclosed was addressed to the Directors of Astar Services Ltd and stated that it was a discovery assessment. Given its response on 29 March 2016 the Appellant clearly received and was aware of the notice. As the notice was enclosed with the letter containing the address I am satisfied that the lack of address on the Notice itself does not invalidate the assessment. 58. I did not find that the Corporation Tax Act 2010 or The Overseas Companies Regulations 2009 (SI 2009/1801) assisted in determining the issue relating to service. On the information before me I cannot be satisfied that the Appellant was required to register with Companies House and I make no further comment on that issue. 59. Similarly, in the absence of any authorities provided to me regarding a company’s principal office or any evidence on the point I did not find the Unregistered Companies Regulations 2009 (SI 2009/2436) assisted. However I note that the Regulations provide that in the case of an unregistered company “registered office” shall be read as “the company’s principal office” to which notices and communications “may at all times be addressed”; it seems to me that the absence of mandatory provisions are designed to take a common sense approach in order to ensure that the purpose of communications, namely to be brought to the company’s attention, is met. 60. I considered the guidance in the Civil Procedure Rules relating to service. Although not directly applicable the Rules provide for service by personal service or post in the case of a company not registered in the UK (Rule 6.9): “Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction…. Where, having taken the reasonable steps required by paragraph (3), the claimant(a) ascertains the defendant’s current address, the claim form must be served at that address; or(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is – (i) an alternative place where; or (ii) an alternative method by which, service may be effected.” 61. Rule 6.15 provides: (1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service. 62. In my view the relevance of the CPR is in indicating that service must take place, in so far as is possible, at a specified address in order to ensure that the relevant person or company is made aware of the claim. However by the inclusion of Rule 6.15(2) the Rules contemplate the possibility that a service at a specified or identifiable address may not be possible but this does not, of itself, invalidate the service if reasonable steps are taken to ensure the claim is brought to the person or company’s attention. In my view this is supported by the judgment in Smith v Hughes and another [2003] EWCA Civ 656 at [103]:[102]“ As we have said, there is no suggestion in this case that 45 Whitworth Close was not Mr Hughes' last known residence. If the MIB had disputed the claimant's claim that this was Mr Hughes' last known residence, then difficult questions might have arisen. In particular, is the rule concerned with the claimant's actual knowledge, or is it directed at the knowledge which, exercising reasonable diligence, he or she could acquire? We incline to the latter view, but, as we have said, the point does not arise on this appeal. ”63. Taking into account all of the guidance and the particular circumstances of this case I am satisfied that by sending the discovery assessment to the directors at the address provided by the Appellant as purchaser on the return constitutes valid and proper service. Whether the assessment is out of time64. HMRC had nine months to open an enquiry into the SDLT return pursuant to section 12 FA 2003. No enquiry was opened; HMRC wrote to the Appellant on 28 March 2014 and 30 April 2015 raising queries as to why relief was claimed and requesting information and documentation; the questions and requests went, and remain unanswered.65. Had an enquiry been opened the time limit was nine months after the filing date if the return was delivered on or before that date. In this appeal the return was delivered on 31 October 2012 which was before the filing date of 7 November 2012 (i.e. 30 days from the date of the transaction which took place on 8 October 2012). Therefore the deadline for opening an enquiry was 7 August 2013.66. The correspondence from HMRC to the Appellant dated 28 March 2014 and 30 April 2015 did not purport to formally open an enquiry. I accept that it was still open to the Appellant at that point to either amend the return to meet the requirements of the Finance Act 2013 or to explain to HMRC why it was not affected by the changes to the legislation.67. Once the enquiry window expired it was open to HMRC to raise a discovery assessment if the provisions of sections 28 - 31 FA 2003 were met, namely HMRC discovered a loss of tax and at the time they ceased to be entitled to give notice of an enquiry they could not have been reasonably expected, on the basis of the information made available to them before that time, to be aware of the situation. I will address the Appellant’s submission that the return was made on the basis of generally prevailing practice in due course. The only other relevant limitation is contained in section 31 which provides that, as a general rule, no assessment may be made more than four years after the effective date of the transaction to which it relates. As the discovery assessment was issued on 1 March 2016 I am satisfied that this fell within the four year time limit which expired on 8 October 2016.68. For the reasons set out above I have concluded that the discovery assessment was issued in time. Was there a discovery?69. The validity of the assessment depends on whether it meets the preconditions for a discovery assessment in respect of stamp duty land tax, which are set out in paragraph 28 Sch 10 FA 2003.70. There is little authority on these provisions. However there are a number of authorities relating to the similar provisions in the Taxes Management Act 1970. I take the view that the authorities on the TMA discovery provisions apply equally to the SDLT discovery provisions (save where the provisions clearly differ). Given the parties’ reliance on authorities relating to the TMA discovery provisions I have concluded that this is not a contentious view.71. In Langham v Veltema [2004] EWCA Civ 193 , the Court of Appeal considered the scope of s29(5) TMA 1970. It is clear from the Court of Appeal’s decision that s29(5) only operates to prevent HMRC from making an assessment if the information “made available” to the hypothetical officer would have made that officer aware of an actual insufficiency of tax (see [80]: “More particularly, it is plain from the wording of the statutory test in section 29(5) that it is concerned, not with what an Inspector could reasonably have been expected to do, but with what he could have been reasonably expected to be aware of. It speaks of an Inspector's objective awareness, from the information made available to him by the taxpayer, of "the situation" mentioned in section 29(1), namely an actual insufficiency in the assessment, not an objective awareness that he should do something to check whether there is such an insufficiency…”72. In HMRC v Charlton [2013] STC 866 at [37] the Upper Tribunal said: “All that is required is that it has newly appeared to an officer, acting honestly and reasonably, that there is an insufficiency in an assessment. That can be for any reason, including a change of view, change of opinion, or correction of an oversight.”73. On 1 March 2016 (by which time the “enquiry window” within which HMRC could open an enquiry into return had closed) HMRC made a discovery assessment. The Appellant submitted that HMRC must have known of or believed in the Appellant’s underassessment before the discovery assessment was made. The Appellant further submitted that this belief or knowledge was available to HMRC long before the assessment was issued thereby rendering the assessment stale.74. I do not accept the Appellant’s submissions on this point. HMRC had written to the Appellant requesting clarification as to why relief was claimed. The Appellant failed to provide any information as to whether an avoidance scheme had been used or the basis of the relief claimed. The Appellant also failed to provide the 18 items of documents and information requested on 28 March 2014 which included: · Copies of all documentation provided to you or others acting on your behalf relating to the methodology used to reduce the charge to SDLT in respect of these transactions, to include, if relevant, copies of any advertising material; · Where any other entity other than you was a party to the transaction, please provide details of that entity, the role and function it performed in the transaction and the rationale for this; · Confirmation as to whether the company is connected to the vendor (or any simultaneous purchaser) under s1122-1123 Corporation Tax Act 2010; · A full explanation of the commercial rationale in purchasing the land/property and any simultaneous sale.75. At the time of writing to the Appellant HMRC was aware that code 28 relief had been claimed on a land transaction, that the agent acting on behalf of the Appellant was engaged in SDLT avoidance schemes which the Appellant may have been involved in and that legislation newly introduced applied retrospectively to transactions that took place on or after 21 March 2012 and which required taxpayers to amend their returns if caught by the legislation.76. The lack of any response by the Appellant to HMRC’s queries meant that absolutely no information about the transaction and possible scheme used was disclosed to HMRC in the SDLT return. No explanation was provided to HMRC as to the basis of the claim for code 28 relief or to indicate that the figures on the return were correct. I take the view that the facts of this appeal are distinguishable from those in Charlton . In the present appeal the return did not put HMRC in a position whereby they could reach an informed view as to whether there was an insufficiency in the SDLT return and therefore they were not prevented from issuing a discovery assessment. As stated by Lord Glennie in Pattullo v HMRC [2016] UKUT 270 (TCC) at [44]: “The process of discovery, or coming to a realisation, or forming a view, whichever expression one chooses, is not always as simple as is suggested by the metaphor of crossing a threshold. There may be moments when the discovery of new information causes an inspector briefly to form a view that more tax is owing than has been assessed. But then he may reflect that perhaps he has been overhasty in coming to that conclusion, perhaps he needs more information, one more piece of the jigsaw. This may happen a number of times. It may not always involve the acquisition of further information. It may involve legal research, or further reflection on the legal research already carried out. Or it may simply be a question of taking more time to think; of lights coming on one by one until eventually it becomes clear; of weighing the matter up, sometimes coming to one view and sometimes another, until eventually coming down on one side or another. There is, to my mind, some force in Mr Anderson’s point about the danger of analysis by metaphor, but if the metaphor of crossing the threshold is to be used, then, while that moment may occur at the end of that process, there will be many points on the way to that threshold when discoveries are made, points become clearer and thoughts become more refined. There may even be hesitation on the doorstep, shifting forwards then back again before finally going in. Crossing the threshold is not like crossing the Rubicon.”77. I am satisfied that HMRC have discharged the burden of demonstrating that the discovery assessment was validly made. The burden then shifts to the Appellant to demonstrate the true amount of the tax liability in relation to the transaction. No evidence was put forward to establish that the liability was lower than HMRC had assessed or that the return was made on the basis of or in accordance with generally prevailing practice at the time. I therefore find that the Appellant has not discharged the burden.78. The Appellant’s submission that HMRC should have amended the return under paragraph 7 Sch 10 FA 2003 is, in my view, misconceived. The Appellant was notified of the change in legislation and given the opportunity to correct the return or explain why it was unaffected by the legislation; it failed to do either. In those circumstances it cannot be said that there was, until the discovery was made, any “obvious errors or omissions”; HMRC was simply trying to ascertain the position. I am satisfied that there was no obligation on HMRC to amend the return and by the time the discovery was made it was out of time to do so in any event.79. The issue of staleness was considered in Pattullo in which it was said at [53]: “ I do not think it would be helpful to try to define the possible circumstances in which a discovery would lose its freshness and be incapable of being used to justify making an assessment. But I consider that Mr Gordon was right to accept that it would only be in the most exceptional of cases that inaction on the part of HMRC would result in the discovery losing its required newness by the time that an assessment was made.”80. I do not accept the Appellant’s submission that the discovery was stale by the time the assessment was made. Following the introduction of s194 FA 2013 (the retrospective legislation) the Appellant had ample time in which to amend the return or explain why no such amendment was necessary. HMRC attempted on numerous occasions to clarify the situation until a view was formed and the discovery made. In my view there was no significant delay between making the discovery and issuing the assessment; the delay was brought about by the Appellant’s failure to provide information from the outset which had the consequence of lengthening discovery process. In those circumstances I am satisfied that this is not one of the “exceptional” cases referred to by Lord Glennie in Pattullo .81. As regards the Appellant’s submissions in respect of ADR, the Tribunal has no jurisdiction to direct that any particular appeal is subject to the process. It seems to me doubtful whether the process would have led to resolution given the Appellant’s refusal to provide information to HMRC throughout the course of their correspondence. However the matter has no bearing on the issues in this appeal which I have determined on the material before me.82. The appeal is dismissed.83. 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. TRIBUNAL JUDGE RELEASE DATE: 11 July 2018