Daniel Monaghan v The Commissioners For HMRC [2026] UKFTT 1029 (TC)

[2026] UKFTT 01029 (TC)Case No TC 09949
FIRST-TIER TRIBUNAL
TAX CHAMBER
Date Judgment date: 07 July 2026
Decided on the papers
Appeal reference: TC/2025/02172
INCOME TAX – late filing penalties – late appeal – no evidence of notice to file a return under s.8 Taxes Management Act 1970 – appeal allowed
Before
TRIBUNAL JUDGE MATTHEW DONMALL
Between
DANIEL MONAGHANAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentThe Tribunal determined this matter without a hearing under rule 29(1) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.DECISION

Introduction

[1]The Appellant has appealed against late filing penalties imposed by HMRC in respect of the Appellant’s 2019/2020 self-assessment tax return. HMRC also contend that the appeal is late, and object to the appeal being allowed to proceed.

Preliminary matters

[2]This case is being determined on the papers. On 17 June 2025, the Tribunal assigned the appeal to proceed under the basic category. On 28 July 2025, the Appellant, who is based in France, applied to the Tribunal for the case to be determined on the papers. On 25 September 2025, the Tribunal asked HMRC if they were content for the matter to be determined on the papers, and on 3 October 2025, HMRC confirmed that they were. The Tribunal considers that it is able to decide the matter without a hearing, and accordingly the Tribunal hereby proceeds to determine this matter without a hearing under rule 29(1) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.[3]The Tribunal issued directions on 20 February 2026 providing for the parties to provide statements from all witnesses on whose evidence they intend to rely, for an agreed electronic hearing bundle of documents, and for submissions from the parties (1 May 2026 for Appellant, 15 May 2026 for HMRC, 29 May 2026 for any response from the Appellant), noting that if submissions were not received by the due date, it would be assumed that the right to make submissions was not being exercised. In fact, no witness statements nor any submissions were provided to the Tribunal by either party. It follows therefore that this matter is being determined on the basis of the following documents:(1) The agreed document bundle submitted by HMRC on 16 June 2026 in two parts, 431 pages in length (hearing bundle). This includes the notice of appeal and HMRC’s statement of reasons.(2) The documents that the Appellant appended to his response to HMRC’s statement of reasons by email to the Tribunal and copied to HMRC of 1 August 2025, being a three-page ‘Tribunal Rebuttal’ document (the Rebuttal) and three .jpg image files, one evidencing postage on 1 March 2021, one a screenshot showing £1,600 penalties due, and another one stating “Your balance No tax is due at the moment” It is not clear why these documents were not included in the hearing bundle. Especially as the Appellant is a litigant in person, I consider it fair and just to take them into account.

Factual background

[4]On the evidence before me, it is not possible to set out a comprehensive factual chronology in this matter. An example of this is that there is not even clarity as to the disputed penalties themselves. There are no notices of the penalties in the hearing bundle. In HMRC’s Statement of Reasons, HMRC assert that the late filing penalties charged were £1,300 in total, being comprised of 1) a penalty on 15 April 2021 of £100 for initial late filing; 2) a daily late filing penalty of £900 imposed on 23 September 2021, and 3) a six-month late filing penalty of £300 also of 23 September 2021. Yet HMRC’s letter of 20 March 2025 which was appended to the Notice of Appeal also refers to a fourth penalty, being a 12-month late filing penalty, and the screenshot provided in the Response documents indicates that the total penalties charged were £1,600. I therefore find that the penalties at issue in this appeal are four penalties assessed by HMRC inclusive of the 12 month late filing penalty referred to in the 20 March 2025 letter (the Penalties).[5]With this qualification made, I find the background facts as follows. Citations of the evidence are verbatim, with any typographical errors retained.[6]On or around 20 October 2020 the Appellant filled out the SA100 Tax Return 2020 paper form by hand, giving an address in France (the Original Submission). He responded on page TR2 “Yes” to the question “8. Were you, for all or part of the year to 5 April 2020, one of the following”:
“not resident”, “not domiciled in the UK and claiming the remittance basis”, “dual resident in the UK and another country?”
. The Appellant filled out the two-page UK Property pages UKP 1 and UKP 2, and the three pages “RR1-RR3” in respect of “Residence, remittance basis etc”. At box 20, he claimed £16,700 as the amount of Double Taxation Agreement income for which partial relief was made.[7]On 27 January 2021, HMRC wrote to the Appellant:
“Thank you for sending in your 2019/20 Tax Return. Unfortunately, I cannot accept it as we need more information in relation to Box 20 on your Residence pages. I am sending the return back to you. Please resubmit the return with a HS304 and Certificate of residence from France. Please also resign and date the return when you resubmit it. … Please remember that the deadline for filing your 2020 Self-Assessment Tax Return online is 31 January 2021. If you haven't yet registered for online filing, please allow at least seven working days to complete the registration process.”
[8]On 8 February 2021, the Appellant wrote to HMRC about setting up a payment plan for self-assessment and was told by a letter of 9 March 2021 that he could set it up through his online account.[9]On 1 March 2021, the Appellant sent a further copy of the 2019-20 return by tracked mail (the March 2021 Re-submission). There is no copy of this in the bundle; however, in the Rebuttal the Appellant stated that “I resent the required, signed documents via tracked mail on 01/03/2021 Ref LA 04 534 507 FR (image attached). It has to signed for at point of delivery, if not it is returned to sender which it was not ergo it was received.”, and the .jpg image provided supported this. Further, the Appellant’s subsequent correspondence of 26 April 2022 is consistent on the point that there had been a further submission of the papers at around this time.[10]On or around 20 September 2021, the Appellant completed by hand the SA100 Tax Return 2020 paper form by hand (the September 2021 Re-submission). At page TR7, he wrote:
“I am re-sending this as the original was misplaced at your end. Proof of delivery enclosed. I was advised by Nicola (very helpful lady) at your SA office. The numbers differ from original as there was erroneous data admitted.”
The numbers differ from original as there was erroneous data admitted.”[11]The data changed appears to have related to the UKP “UK Property” income pages.[12]On 2 April 2022, the Appellant wrote to HMRC stating:
“Following a telephone call to your team I have been advised that I ticked box 21A on my self assessment form when apparently I should not have done. I ticked this because I live in France and have all my income generated in the UK, however I pay tax in France and having read the help sheets determined that I should tick the box to avoid paying tax both in the UK and France. Therefore, based on this please untick the box.”
Therefore, based on this please untick the box.”[13]By letter dated 26 April 2022 (the 2022 letter), the Appellant wrote to HMRC concerning his tax affairs “for the year 2020-2021” (in subsequent undated correspondence, he explained that he had meant 2019-2020). He stated as follows: “My tax return was sent to you by registered mail and delivered on October 26th for which I have proof of delivery. The envelope contained both my wifes and my own tax return. My wifes return was dealt with promptly and her tax affairs sorted by the end of January. When I chased action on my own return I was informed you hadn't received it and I was issued with a penalty. I called and explained that you had received it as I had proof of delivery and that my wifes return was actioned and had been in the same envelope you stated you would look into it. I then received a letter asking me to provide further information which I did and sent it to you, again by registered mail for which I have proof of delivery which again you declared you had not received although along with the information requested by you I enclosed a letter posing some questions to which you had replied. I called again to state that I was £180 in credit and after some discussion you located the £180 which was with another HMRC department and moved it to my Self Assessment account. I asked about setting up a payment plan and was issued with a telephone number to call. I called the number and received an automated message telling me the number was no longer in service and that I could set up a payment plan online which I can't as there is a problem with my Gateway ID. I called again and spoke to a lady who was unable to see my tax return but suggested I make a payment, which I did for £100, and she then issued a referral noting that someone should contact me regarding setting up a payment plan, no-one contacted me. She suggested that as there was no trace of my tax return I might want to send another copy, which I did on September 21st for which I have proof of delivery. When I then called again as I still had not received a tax calculation I was told there was no trace of my tax return and that perhaps as I was-due to file another one within three weeks I might like to slip a fourth copy in the same envelope! I have called on numerous occasions to endeavour to resolve this situation as you keep issuing penalties and adding interest and each time I call I'm told not to worry, the penalties will be cancelled as soon as you act on my tax return. Each time I call I have to wait in the queue, I have screen shots of my phone with the call duration showing, average 57 minutes which. I have to pay for. I was told in January 2022 that my tax return had been "located but not captured" whatever that means and yet still I have not received a tax calculation and you keep sending letters stating I owe exorbitant sums. When I called following this at the end of January to chase it up I simply got an automated message stating you were too busy to take the call! I have been completely open and honest throughout this sorry episode and have made every effort to contact you to resolve this matter without making any progress whatsoever. I do not believe my affairs have been handled in a professional and timely manner and wish to register my dissatisfaction with the performance of your offices whilst however commending your personnel who always endeavour to assist and are friendly and keen to try to resolve the issues I present to them. I would be grateful if someone could contact me via email…

I would be grateful if someone could contact me via email…

[14]I infer from a subsequent undated letter that on 3 August 2023, HMRC informed the Appellant that it was unable to trace his record, as the 2022 letter had not included his National Insurance or Unique Taxpayer Reference number.[15]Subsequently the Appellant sent an undated letter sometime around November 2024 (the 2024 Letter). The hearing bundle index suggests that the date of this is 21 November 2024, and that is the date asserted in HMRC’s Statement of Reasons. I therefore find that this was the likely date of receipt of the letter by HMRC. This letter: I write concerning a change to the information held in my Government Gateway account with reference to my tax affairs. For tax year ending April 2020 my account shows a debt following various penalties. I enclose a letter which I sent to you on April 26th 2021 which you failed to respond to until 03 August 2023 stating that as I had not included my NI or UTR number you were unable to trace my record, I do not believe for one moment that it is beyond the wit of man to do this as I'm quite sure I am the only customer you have with my name who resides in France and is required to complete paper tax returns. I unfortunately titled the letter as dealing with 2020 / 2021 however a quick check versus content would have been clear to anybody. I enclose the letter as its content remains valid, particularly as on the 21st March 2021 I spoke at length (51 minutes to be precise) with one of your team called David who agreed with the contents of the letter which I expressed over the phone and he cancelled all penalties. I do not understand why these penalties would have resurfaced. Neither do I understand why my account now shows random penalties for- 02 April 2013 6 months late filing penalty 06 November 2014 30 days late filing penalty 01 October 2015 12 months late filing penalty I find this most bizarre as other than for one year during my employment at Tesco I have never used Self Assessment until 2019. There is clearly a problem with your accounting and communication which you need to resolve. I have proof of delivery and even a photocopy of the second return I sent to you which you state you didn't receive. … I have still not received a tax calculation for 2019- 2020, as soon as you send me one, I shall pay the tax…[16]I would note that the date of the letter in the third paragraph seems to have been incorrectly stated, presumably being a reference to the 2022 Letter of 26 April 2022. The date of the telephone call in the fourth paragraph, given as 21 March 2021, also seems likely to be incorrect, given that none of the Penalties were issued as of 21 March 2021/[17]On 13 December 2024, HMRC wrote to the Appellant: Appeal against the penalties for sending in your 2019 to 2020 Self Assessment tax return late You appealed against the penalties we charged you for not sending your 2019 to 2020 Self Assessment tax return on time. The deadline has passed for appealing against the:• late filing penalty• 6-month late filing penalty• 12-month late filing penalty• daily penalties The penalty notices we sent you say that you have 30 days in which to write in and appeal against the penalties. However, we received your appeal after these deadlines. And we do not agree that you’ve a reasonable excuse because the Self Assessment tax return for the tax year 2019 to 2020 was sent back to you as unsatisfactory on the 17 November 2022. A copy of our letter is enclosed. Your tax return for the above year is still shown as outstanding.[18]On 15 January 2025, the Appellant sent a further copy of the SA100 form for 2019-20 (the 2025 Re-submission). In the hearing bundle, the pages relating to this 2025 re-submission were those in the September 2021 Re-submission, although here were also the three residence pages RR1-3 submitted, with text at box 40:
“This form relates to tax year 20/21 hence the form used is the 20/21 version as 19/20 no longer available on the website.”
[19]On 20 January 2025, the Appellant submitted a complaint to HMRC (the 2025 Complaint): I have written to you in November listing a number of points I wanted answers to however your reply fell short in not answering any of them. I have telephoned and been misinformed by your staff member Olashey on the 20th of January and was then cut off by him. I then spoke to Vincent who was most helpful but suggested a complaint would be the best way forward as he had no access to dated records. My Gateway account shows a List of Statements of account at £1475, my tax statements show I need to pay £1202 and £601 by Jan 31st. My Tax Overview for year ending 2020 shows penalties at £1609 less payments of £1609 and a balance of £0 yet you are chasing me for payment. My account also shows penalties for 2021 for tax year ending September 23rd 2021. I was unaware that any tax year ran from September to September. I check my Gateway account regularly and these penalties and absurd charges did not show in March 2024, they appeared after that. I have had numerous problems woth you claiming non receipt of of information only for you to back pedal when presented with POD or the the fact that you received my wifes tax return but not mine when they were sent in the same envelope. Contrary to my request, having ticked the appropriate box on my tax return, by Jan 31st you will have taken £768 from my pension via PAYE which Olashey jovially informed me you would hang on to until 2026 as a credit to my account. I believe the whole handling of my affairs to be opaque and untimely.[20]On 11 March 2025, HMRC responded to the 2025 Complaint in part, stating that it could not respond on the penalty, because that was to be considered by a statutory appeal process. As regards the tax position:
“Your records also shows that we returned your original tax return because it was missing the residency page, so we were unable to accept it. I have raised an assessment for the tax due for 2019-20. I have sent you a copy of my assessment to you in the post along with a copy of your tax calculation.”
On 12 March 2025, HMRC duly sent an assessment for tax to 5 April 2020 for £331.40, stating:
“Your tax return for the year ended 5 April 2020 should have been with us by 31 October 2020. However, we did not receive this tax return until 21 January 2025.”
[21]On 20 March 2025, HMRC then responded to the 2025 Complaint insofar as it related to the penalty, treating it as an appeal against the penalty: Your appeal Thank you for contacting us on 20 January 2025 about your appeal. You appealed against the penalties that we charged you for the 2019 to 2020 tax year. We charged you a:• late filing penalty• late filing daily penalty• 6-month late filing penalty• 12-month late filing penalty We contacted you on 12 December 2024 to tell you that we could not accept your appeal. This is because the deadline for making an appeal had passed. I still cannot accept your appeal. If you do not agree that you made your appeal too late for us to consider, you can ask HM Courts & Tribunals Service to review our decision.[22]On 10 April 2025, the Appellant appealed to the Tribunal. Under Timing of appeal, he wrote: HMRC returned my form due to it missing the residency pages. These were sent via recorded delivery in February 2021 and received by HMRC as was agreed by a gentleman called Brian whom I spoke to on 22 April. Following this I heard nothing from HMRC in relation to this tax year until penalties appeared in my on line account which had not previously been there. Following a number of calls I was advised to make a complaint which I did. The points raised in the complaint were not addressed by the handler and I called them to point this out whereby they said they couldn't comment on penalties. My point is that I sent the document you requested and it was received by HMRC, a member of your team agreed it had been received therefore there was no late filing. My dealings with HMRC over the last five years have been nothing short of shambolic with claims of non receipt of forms yet when presented with proof of delivery they are miraculously found, the same applies to not receiving my tax return but receiving my wifes when they were sent in the same envelope. I have records of my conversations with HMRC team members. I am still awaiting a copy of my 2013 tax return Olashye promised me on January 20th.[23]In the Rebuttal of 31 July 2025, the Appellant wrote: 1. My original submission did include the residency pages which HMRC then misplaced. I submitted my wifes tax return in the same envelope and her return was duly processed and an inaccurate Tax Statement provided on the 16/01/201 which when challenged via telephone, was replaced with an accurate Statement six weeks later. I would not submit my wifes tax return including the residency pages and in the same envelope include my own tax return minus the residency pages. 2. I received a letter dated 27/01/2021 which I received on February 28th as all mail from HMRC is routed via Holland which takes, on average, six weeks to arrive. I have complained about this to HMRC on numerous occasions. 3. I resent the required, signed documents via tracked mail on 01/03/2021 Ref LA 04 534 507 FR (image attached). It has to signed for at point of delivery, if not it is returned to sender which it was not ergo it was received. 4. I then received a Late Payment notice and saw penalties on my Self Assessment account so telephoned and was told I could not challenge the late payment notice until the completed tax return had been received. I informed HMRC the required documents had been sent and was informed they had been “logged but not captured” (I do not know what this means and presume it to be internal HMRC jargon for not knowing where something is) and they advised me to call in 14 days. 5. I called again on April 22nd and spoke to Brian, an agent of HMRC who agreed on having been given the postal details that the documents had been received and that he would ensure any penalties would be removed. At this stage I was under the impression that my tax affairs were up to date as HMRC had received everything required. In my Tax Year Overview it showed Penalties £1609 Less Payments 1609 = £0 (screenshot attached) therefore I believed this matter was finished until on December 13th 2024 I was made aware following a call from myself that this situation was as we have now… The late appeal application Legislative background

The late appeal application

[24]The penalties against which the Appellant appeals were imposed under schedule 55 of the Finance Act 2009. Paragraph 1 states that a penalty is payable by a person P where P fails to make or deliver a return on or before the filing date, being in respect of income tax, a “Return under section 8(1)(a) of TMA 1970”. That section of TMA 1970 provides:
“For the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for a year of assessment, and the amount payable by him by way of income tax for that year, he may be required by a notice given to him by an officer of the Board— (a) to make and deliver to the officer, a return containing such information as may reasonably be required in pursuance of the notice,”
[25]Paragraph 18 provides for the formal requirements of a penalty: (1) Where P is liable for a penalty under any paragraph of this Schedule HMRC must— (a) assess the penalty, (b) notify P, and (c) state in the notice the period in respect of which the penalty is assessed.[26]Paragraphs 20 to 22 provide, in respect of appeals: 20(1) P may appeal against a decision of HMRC that a penalty is payable by P. (2) P may appeal against a decision of HMRC as to the amount of a penalty payable by P. 21(1) An appeal under paragraph 20 is to be treated in the same way as an appeal against an assessment to the tax concerned (including by the application of any provision about bringing the appeal by notice to HMRC, about HMRC review of the decision or about determination of the appeal by the First-tier Tribunal or Upper Tribunal). … 22(1) On an appeal under paragraph 20(1) that is notified to the tribunal, the tribunal may affirm or cancel HMRC’s decision.[27]So by paragraph 21(1), the appeal against the penalty is treated in the same way as an appeal against an assessment to income tax, being the tax concerned. Accordingly, the provisions of the TMA 1970 are relevant: 31 Appeals: right of appeal(1) An appeal may be brought against– … (d) any assessment to tax which is not a self-assessment. 31A Appeals: notice of appeal (1) Notice of an appeal under section 31 of this Act must be given– (a) in writing, (b) within 30 days after the specified date, (c) to the relevant officer of the Board. … (4) In relation to an appeal under section 31(1)(d) of this Act …– (a) the specified date is the date on which the notice of assessment was issued, and (b) the relevant officer of the Board is the officer by whom the notice of assessment was given. … 49 Late notice of appeal (1) This section applies in a case where– (a) notice of appeal may be given to HMRC, but (b) no notice is given before the relevant time limit.(2) Notice may be given after the relevant time limit if– (a) HMRC agree, or (b) where HMRC do not agree, the tribunal gives permission.[28]Under s.49(2)(b) TMA 1970, the Tribunal therefore has discretion to admit a late appeal.

Discussion

[29]The principles applicable to whether the Tribunal should give permission for a late appeal were set out by the Upper Tribunal in the case of Martland v HMRC [2018] UKUT 178 (TCC) ("Martland"), at [44] - [47]. In summary:(1) It must be remembered that the starting point is that permission should not be granted unless the Tribunal is satisfied on balance that it should be.(2) In considering that question, the Tribunal can usefully follow a three-stage process: (i) 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 Tribunal 'is unlikely to need to spend much time on the second and third stages'; (ii) Establish the reason (or reasons) why the default occurred; and (iii) Evaluate 'all the circumstances of the case'. This will involve a balancing exercise which will essentially assess the merits of the reason(s) given for the delay and the prejudice which would be caused to both parties by granting or refusing permission.(3) The balancing exercise should take into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected. This approach has recently been confirmed as correct by the Court of Appeal in HMRC v Medpro Healthcare Ltd [2026] EWCA Civ 14.(4) In carrying out the balancing exercise the Tribunal can have regard to any obvious strength or weakness of the applicant's case; this goes to the question of prejudice. There is obviously much greater prejudice for an applicant to lose the opportunity of putting forward a really strong case than a very weak one. It is important however that this should not descend into a detailed analysis of the underlying merits of the appeal.(5) Neither shortage of funds (and consequent inability to instruct a professional adviser) nor the fact that the applicant is self-represented should generally carry any weight in the Tribunal's consideration of the reasonableness of the applicant's explanation of the delay.[30]As regards the length of the delay, HMRC have asserted that three of the four Penalties were dated 15 April 2021 (the initial late filing penalty) and 23 September 2021 (the daily penalty and 6-month late filing penalty). It is unclear when the 12-month late filing penalty was imposed. There is the difficulty that while HMRC assert delay from 30 days after these dates, HMRC have not provided any evidence in the bundle of the notices of penalties themselves. It is not possible to tell, for example, whether those notices complied with the requirements of paragraph 18 of Schedule 55. However, the 2022 Letter of 26 April 2022 did accept that “I was issued with a penalty”, and the Rebuttal also referred to his receipt of “a Late Payment notice and saw penalties on my Self Assessment account” as the next point after the March 2021 Re-submission. For the purposes of determining the late appeal application, I will proceed on the basis that all but the 12-month penalty were notified in 2021 as HMRC assert, which means that the length of delay would be a lengthy one of over 3 years. That is plainly a serious and significant period of time.[31]As regards the reasons why the default occurred, I find as follows:(1) The Appellant at all times strove to comply with his tax obligations. I find that he attempted to submit the 2019-20 tax return four times in all, the Original Submission, the March 2021 Re-submission, the September 2021 Re-submission and the 2025 Re-submission. He also contacted HMRC by telephone on numerous occasions and engaged in correspondence with HMRC.(2) I accept the Appellant’s evidence that he understood from telephone calls that the penalties would be cancelled (see his assertions in his 2022 Letter, 2024 Letter, Rebuttal). While there may be some parts of the chronology in the Appellant’s correspondence that is not entirely consistent in terms of dates, some inconsistency might be understandable in the lengthy history of this matter relating to a period of years from 2020 to 2025. The overall impression from the material before me is that the Appellant strove to contact HMRC to understand the situation and challenge any penalties, and he had understood that he had done so up until around November 2024, at which point he sent the 2024 Letter, which set in train HMRC’s response, and his 2025 Complaint of 20 January 2025, treated by HMRC as an appeal against the Penalties.[32]For their part, HMRC do not engage with the Appellant’s contentions on this point. HMRC’s Statement of Reasons merely submit, in respect of the reason for the default, that “HMRC do not believe there was any reason for the late appeal as the Self-Assessment tax return for the tax year 2019 to 2020 was sent back to the Appellant as unsatisfactory on the 17 November 2022.” This in my judgment does not assist. The delay in issue is the delay in challenging the Penalties. (Nor, in any case, is there any documentation in the bundle dated 17 November 2022, and that date does not appear in HMRC’s own “Background” section of the Statement of Reasons).[33]Turning to all the circumstances of the case, the starting point is that permission should not be granted unless the Tribunal is satisfied on balance that it should be. I give particular weight to the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected. I take into account the very long period of delay in the case, which is significant and serious, and that there would be some prejudice to HMRC were the appeal to be allowed to continue. On the other hand, I have accepted that the Appellant did seek to challenge the Penalties and had understood from telephone calls that they were to be cancelled, and so this is not a case where a taxpayer has simply done nothing. I note, for example, that his appeal to the Tribunal on 10 April 2025 was within 30 days of HMRC’s refusal of his appeal to them of 20 March 2025. Further, there would be prejudice to the Appellant if permission to bring a late appeal were refused, as he would lose the ability to contest the Penalties.[34]Finally, the Tribunal can have regard to any obvious strength or weakness of the substantive appeal. In my judgment, there is an obvious strength of the appeal in light of the Upper Tribunal judgment in Rogers v HMRC [2019] UKUT 406 (TCC) at [49-50]: 49 Goldsmith [2019] UKUT 325 (TCC) at [101] records HMRC’s acceptance (which in our view is correct) that, in order to impose a penalty for late filing of a tax return under Schedule 55, HMRC must prove that a notice under section 8 was in fact served. Before us, HMRC seemed less ready to accept this point, but we consider it follows from the following passage of the judgment of the UT (Judges Herrington and Poole) in Perrin v Revenue and Customs Comrs [2018] UKUT 156 (TC); [2018] STC 1302 at para 69: “Before any question of reasonable excuse comes into play, it is important to remember that the initial burden lies on HMRC to establish that events have occurred as a result of which a penalty is, prima facie, due. A mere assertion of the occurrence of the relevant events in a statement of case is not sufficient. Evidence is required and unless sufficient evidence is provided to prove the relevant facts on a balance of probabilities, the penalty must be cancelled without any question of ‘reasonable excuse’ becoming relevant.” 50 It follows that, if HMRC fail to provide any evidence at all to the effect that a section 8 notice was served, they will have failed to demonstrate a crucial fact on which their entitlement to a penalty hinges and the FTT will necessarily set aside the penalties charged for alleged failure to comply with that notice.[35]Accordingly, in Marano v HMRC [2024] EWCA Civ 876 the Court of Appeal at [4] recorded that: It has been common ground throughout that there can be no obligation to submit a return unless the taxpayer has previously been given notice requiring submission pursuant to section 8 TMA 1970. It is also common ground that a taxpayer who is not under a duty to submit a return pursuant to such a notice cannot be liable for a penalty for late filing.[36]Nowhere in the hearing bundle is there a notice from HMRC to the Appellant requiring him to submit a return for the tax year 2019-2020. The starting point in HMRC’s chronology is at paragraph 3:
“On 20 October 2020, the Appellant submitted their return into HMRC for 2019/2020 tax year.”
. So in this case, the situation seems as described by the Upper Tribunal in paragraph 50.[37]So for these reasons, I determine that the overall balance is in favour of allowing the late appeal.

The substantive appeal

[38]As I have allowed the appeal to be brought late, I therefore proceed to determine the substantive appeal.[39]For the reasons already given, HMRC have failed to provide any evidence at all to the effect that a section 8 notice was served. There is no copy of any notice within the hearing bundle. There is no witness statement that a notice was served or when. The Background in the Statement of Reasons does not include any assertion that a notice was given or when. The Statement of Reasons at paragraphs 56 to 68 do not address the issue at all, when seeking to establish the Appellant’s liability to the Penalties. All there is in the Statement of Case are the following paragraphs in the following section under the heading “Reasonable Excuse”, the first of which is a general statement, and the second of which is absent any proper specificity as to what was sent and when:79. The Respondents contend, once a taxpayer is issued with a personal tax return, he/she is legally obliged to ensure that it is filed on or before its filing date.80. The Respondents submit, HMRC have sent the correspondence to the address on the system at the time of issue.[40]I note that the SA100 2020 Tax Return form which the Appellant completed states, at the outset, “This notice requires you, by law, to make a return of your taxable income and capital gains, and any documents requested, for the year from 6 April 2019 to 5 April 2020”. However, I do not consider that this fact of itself makes that form a notice for the purpose of s.8(1) TMA in this case. As the FTT held in Wood v HMRC [2018] UKFTT 0074 (TC) at [43-47], the fact that a form uses these words, and can be downloaded, does not satisfy the requirement of s.8(1) that a notice has been given to the taxpayer in question.[41]Taken as a whole, I do not consider that HMRC have discharged the burden upon them to prove that a notice under section 8 was served. As a result, the statutory basis for the Penalties has not been established, and this appeal must be allowed for that reason alone. It follows that there is no need for me to consider any issue about the validity of the Penalty notices themselves under paragraph 18 of Schedule 55, nor any issue about reasonable excuse under paragraph 23 of Schedule 55.

Conclusion

[42]For the above reasons, the appeal against the Penalties is allowed.

Right to apply for permission to appeal

[43]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. Release date: 07 July 2026