“the decisions were made on14 August 2017 however subsequent discussions between the parties places the letter of16 April 2018 as the relevant decision for the purposes of the appeal time frame.”
“whilst that rule is not in our view directly applicable to the exercise carried out by the FTT, there is no doubt that the principles of fairness and justice underpinning that rule also underpin the general exercise of discretion with which the FTT was concerned (see [19] above).”
“The statutory discretion conferred on the FTT in such cases is ‘at large’, in that there is no indication in the statute as to how the FTT should go about exercising it or what factors it should or should not take into account.”
“[44] When the FTT is considering applications for permission to appeal out of time, therefore, it must be remembered that the starting point is that permission should not be granted unless the FTT is satisfied on balance that it should be. In considering that question, we consider the FTT can usefully follow the three-stage process set out in Denton : (1) Establish the length of the delay. If it was very short (which would, in the absence of unusual circumstances, equate to the breach being “neither serious nor significant”), then the FTT “is unlikely to need to spend much time on the second and third stages” - though this should not be taken to mean that applications can be granted for very short delays without even moving on to a consideration of those stages. (2) The reason (or reasons) why the default occurred should be established. (3) The FTT can then move onto its evaluation of “all the circumstances of the case”
“Whereas in Martland , which concerned the Application of a statutory provision outside of the Tribunal’s Rules, we took the view that there was no direct Application of the overriding objective in Rule 2, in this case there is a clear and direct Application to the exercise of the Tribunal’s power to extend time in Rule 5(3)(a). However, that is a distinction without a difference. As we went on to say in Martland , the principle of fairness and justice is applicable as a general matter to any exercise of a judicial discretion.”
“did make an error of law in failing to acknowledge or give proper force to the position that, as a matter of principle , the need for statutory time limits to be respected was a matter of particular importance to the exercise of its discretion.”
“Turning to other factors relevant to that third stage, the FTT concluded that the financial consequences of Mr Katib not being able to appeal were very serious because his means were limited such that he would lose his home. That, the FTT concluded, was too unjust to be allowed to stand. We have considered this factor anxiously for ourselves. However, again, when properly analysed, we do not think that this factor is as weighty as the FTT said it was. The core point is that (on the evidence available to the FTT) Mr Katib would suffer hardship if he (in effect) lost the appeal for procedural reasons. However, that again is a common feature which could be propounded by large numbers of appellants, and in the circumstances we do not give it sufficient weight to overcome the difficulties posed by the fact that the delays were very significant, and there was no good reason for them.”
“In the context of an appeal right which must be exercised within 30 days from the date of the document notifying the decision, a delay of more than three months cannot be described as anything but serious and significant.”
“…if permission is granted, HMRC will be required to litigate on a matter which they had previously considered closed; and if permission is refused, the taxpayer will lose the right to contest a decision, which will clearly cause him some prejudice. The real enquiry is into the extent of the prejudice in either case.”
“the concept of the innocent agent extends to anyone who lacks actual or constructive knowledge of the criminal enterprise in relation to the goods (i.e. the attempt to evade tax on the goods), regardless of whether that person knows that the goods he or she is carrying are of a kind which is subject to excise duty in the first place.”
“Given the fundamental importance of proportionality in EU law, it is certainly arguable that, had there been any intention to impose strict liability in the 2008 Directive, it would have been expressly stated.”
“The facts as found by the FtT included: (1) that Mr Perfect had no interest of his own in the goods, was not part of any conspiracy, and had simply followed instructions; (2) that the only information that he had was to be found in the documentation he collected when he picked up the goods; (3) the documentation appeared to be consistent with the movement of goods subject to a valid duty-suspended arrangement; and (4) Mr Perfect had no means of checking whether the ARC on the documentation had been used or not. In our judgment, those facts as found by the FtT entitled the Upper Tribunal to conclude that Mr Perfect was an innocent agent. In the light of those findings, the Upper Tribunal was plainly entitled to conclude that his action in bringing into this country goods on which duty had not been paid was plainly not 'deliberate' within the meaning of para 20 of Sch 41 to the 2008 Act and, furthermore, was plainly capable of giving rise to a reasonable excuse under that paragraph.”
“The important misunderstanding that has occurred is that, if (i) there is a non-trivial (now serious or significant) breach and (ii) there is no good reason for the breach, the application for relief from sanctions will automatically fail. That is not so and is not what the court said in the Mitchell case: see para 37. Rule 3.9(1) requires that, in every case, the court will consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’.”