“I apologise for any confusion or upset caused by the demand issued after we agreed to suspend the penalty. Mr Blackman [the officer who had agreed to suspend the penalties] accepts full responsibility for the oversight and I am pleased to tell you that in view of your attempts to file your 2014-15 return, he has agreed to cancel the penalty. Mr Blackman will make the necessary arrangements shortly.”
“I am sorry that you experienced so much difficulty with your online tax account. You say that you have documentary evidence that we changed the online access facility. A colleague in our Digital Services team has looked at your online records which broadly tie in with your own version of events. We cannot trace any calls from you to our Online Services helpdesk but there is nothing to suggest there was any other problem except that incorrect passwords were entered. We are not aware of issues with passwords and User IDs as you describe but if you do have any further information I will be happy to look at it. You should now be able to use the online facility as normal but notwithstanding that I see no reason why in the meantime you could not have sent us paper returns to update your tax affairs. As your 2014-15 return remains outstanding and you have now incurred a filing penalty, you may wish to consider this option.”
“Further to my colleague’s letter of the15 April 2016 , I am writing to advise you that penalty charge under Schedule 24Finance Act 2007 for the submission of incorrect returns for the years 2008-09 to 2011-12 has been withdrawn. I apologise for the oversight in issuing the demand.”
“Did Ron Blackman issue the Penalty Notice dated26 January 2016 Did HMRC change the online access to my SA prior to01 February 2016 ”
“1. Did we issue the Penalty Notice dated26 January 2016 ? As explained in Mr Preston’s reply we made a mistake by sending you the penalty notice of26 January 2016 . We made Mr Blackman aware of this error and he wrote to you and apologised for the oversight on20 April 2016 , he withdrew the penalty on the same day. 2. Did we change the online access to your SA account prior to1 February 2016 ? Mr Preston has apologised for the difficulty you experienced in accessing your online account. Our digital services team have confirmed that your online account was locked due to an incorrect password being entered three times at 22:08 on31 January 2016 . We did not change the online access and there were no known issues at the time. As you are aware, when an incorrect password is entered, for security reasons we lock users out of the system for 2 hours.”
“We have acted on the recommendations determined by the Tribunal and sent you revised assessments for the tax years 2008-09, 2009-10 and 2010-11 and a revised amendment for the 2011-12 tax year. In law, tax as determined by the Tribunal is due and payable. Interest will continue to accrue until the debt is settled. I have no facility to suspend this debt despite the fact you may be seeking a judicial review.”
“The decision of the Defendant [HMRC] to stop the Claimant [Appellant] from amending SA tax return online for years 2009-12 inclusively 2014-2016 inclusively, after deliberately blocking the Claimant’s access to her User ID account on31 January 2016 .”
“The Claimant complains that HMRC deliberately locked her out of her online account, which caused her to suffer ‘malicious harm, personal abuse, harassment and distress’. These are very serious allegations against HMRC. They have been debated extensively in correspondence between the Claimant and HMRC, some of which is attached to the Claim Form. HMRC’s letter dated17 August 2016 records that the Claimant’s online account was locked ‘due to an incorrect password being entered three times at 22.08 on31 January 2016 . We did not change the online access and there were no known issues at the time.’ This appears to be the explanation for what happened (it is entirely credible, despite the Claimant’s case to the contrary). There is no apparent merit in her challenge, even if had been brought in time. Permission is refused for that further reason.”
“For tax years 2009 to 2012, inclusive, the amendments are due because of legal and professional costs incurred from 2013 to 2017 that relate to Tribunal Appeal and Judicial Review, none of which were ever previously included in my on (sic) online submissions. For tax year 2014, rent of£7,200 was never included in the return submitted on12 October 2015 . I had planned to make this amendment online on or before31 January 2016 , but HMRC deny (sic) me full access for reasons which have previously been well documented. For tax year 2015, although I have previously stated a paper submission would follow, there is no need because my total income for the year is below the Personal Allowance of£10 ,000. For tax year 2016, I repeat, there is no return due because my income is well below the Personal Allowance of£10,600 , and I have no intentions (sic) of using on line Self-Assessment in near (sic) foreseeable future.”
“Withdraw their tax and penalty demands Accept the taxpayers’ (sic) adjustments Refund tax due to taxpayer Pay compensation under their Redress Policy Close the matter”
“With reference to the Appellant’s attached ‘Witness List’, the Respondents proceed on the basis that this is a request for attendance, rather than an application for a summons under rule 16 First-tier Tribunal (Tax Chamber) Rules. Please confirm if this is not correct, particularly in the light of the Tribunal’s Practice Statement (“Practice Statement”) on ‘Witness Summonses and Orders to Produce Documents’ (14 June 2022 ) which states that, ‘4. In a normal case no application for a witness summons should be made by a party unless that party has first requested the witness to attend…’ and one of the criteria at (1) – (4) apply’. The Respondents will summarise the background to the issue of witnesses as follows: - The Tribunal issued Directions on24 June 2019 , requiring that listing information be provided by9 August 2019 detailing whether or not witnesses are to be called and if so their names. - On9 August 2019 , you responded to the Directions which stated, ‘The Claimant will not be calling any witnesses’. - On7 September 2021 , you stated that ‘…the Claimant…Intends to call a minimum of three witnesses…’. - In your letter to the Tribunal (dated22 September 2021 ), you stated that, ‘The Claimant intends to call a minimum of three witnesses, some of whom may still be or may not be employed by HMRC. To facilitate this, the June 2022 timeline is seen as reasonable to secure their attendance at the hearing’. However, the Respondents did not receive a witness request following this letter asking that anyone on it still employed by them be produced to give evidence. - On11 October 2021 , the Respondents sent an e-mail to the Tribunal and the Appellant (at info@allegnapartnership.org). Amongst other things, that email requested that the Appellant be directed to provide full details of the witnesses she intended to call and how their evidence related to her contentions. However, following this the Appellant made no witness request to the Respondents nor did she make an application to the Tribunal for any witness summonses. - The Notice of Hearing was issued to the parties by the Tribunal on3 March 2022 . From the above, it is clear that the Appellant has had sufficient time in which to send a witness request to the Respondents, setting out what employees of the latter she wished to give evidence and their relevance to the issues in the appeal. In the event that the ‘Witness List’ is the Appellant’s application for summonses under rule 16, the Respondents submit that the provisions at 16(2) cannot be satisfied. Any summons would be required to give the person sought to be summonsed 14 days’ notice of a hearing. It plain (sic) given the proximity to the hearing on28 June 2022 that this cannot be met. Although a shorter period may be directed by the Tribunal, it would be the Respondents’ view that this would be unreasonable in all of the circumstances. The Practice Statement also lists the procedure on application at paragraphs 7-9 with paragraph 8 specifying what the application must include, such as: (3) the nature and relevance of the evidence which the proposed witness is expected to be able to give. Relevance must be shown by reference to the stated cases of the parties; (4) the reasons why the Tribunal should consider that there is a real likelihood that the evidence will materially assist the Tribunal in its determination of an issue or issues in the proceedings; As above, no information has been provided to explain the nature and relevance of the evidence which the HMRC witnesses you have proposed are expected to be able to give, as required by paragraph 6 of the Practice Statement. This cannot be seen from the Appellant’s Notice of Appeal (dated14 February 2019 ) nor from the supplementary ‘Grounds of Appeal and Requested Resolution’ document (dated24 May 2021 ). The Appellant has also failed to show the reasons why the Tribunal should consider that there is a real likelihood that the evidence will materially assist it in the determination of any of the issues. Further, within the Appellant’s ‘Witness List,’ an IT Security Consultant has been included. Their name is Dominic Norton. Mr Norton has similarly never been intimated as a proposed witness by the Appellant in compliance with the Tribunal’s prior directions. It is entirely unclear to the Respondents what the nature and content of his evidence will be and in particular whether you propose to lead expert evidence from him of some kind (because otherwise the relevance of his evidence is not obvious). Should it be the case that the purpose of his evidence is to give expert evidence of some kind to the Tribunal, it is not clear to the Respondents how the formal requirements of expert evidence can be satisfied without them first having supplied a report to the Tribunal or the parties. For example, expert evidence should normally include details of the expert’s qualifications, what material they have relied on to give their evidence, what the nature of the instructions to them were, a statement that the expert understands that his or her duty is to the Tribunal (not your client) and that they have otherwise complied with that duty. The preceding is by no means an exhaustive attempt to set out what formalities are required in expert/opinion evidence. Accordingly, should the intention be that Mr Norton will give expert evidence of some kind, and in the absence of a report from him which complies with the usual requirements expected of an expert report, the Respondents would intend to oppose you leading evidence from him. However, should Mr Norton not intend to give expert evidence, then the Respondents would be grateful for an urgent explanation of the nature of what his evidence will be in order for them to properly consider their position with respect to it.”
“We seek summons, if necessary, all five witnesses who were or are still employed by the Respondents to give evidence at the forthcoming hearing. Given their roles, responsibilities and personal involvement in the case from the outset to the present, we believe these witnesses are material in determining the accuracy of the Respondents tax liabilities calculations for tax years 2009 to 2012, and 2014 to 2015, as well as the validity of the Respondents penalty charges for tax years 2015 to 2017. In the interest of justice, we respectfully request the Tribunal to issue summons for each individual in the list attached.”
“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
“… Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
“(a) Any amendment of a self-assessment under section 9C of this Act (amendment by Revenue during enquiry to prevent loss of tax), (b) Any conclusion stated or amendment made by a closure notice under section 28A or 28B of this Act (amendment by Revenue on completion of enquiry into return), (c) Any amendment of a partnership return under section 30B(1) of this Act (amendment by Revenue where loss of tax discovered), or (d) Any assessment to tax which is not a self-assessment.”
“There is no discretion on the part of the First-tier Tribunal to determine that interest should not be payable and the First-tier Tribunal made a clear error of law in doing so.”
“We accept HMRC’s general point that, in most cases, when the FTT is considering an application for permission to make a late appeal, failings by a litigant’s advisers should be regarded as failings of the litigant.”
“It is precisely because of the importance of complying with statutory time limits that, when considering applications for permission to make a late appeal, failures by a litigant’s adviser should generally be treated as failures by the litigant.”
“Ordinarily this court should not distinguish between the litigant himself and his advisers. There are good reasons why the court should not: firstly, if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent...”