Appeals

Barristers at Old Square Tax Chambers have significant expertise in dealing with enquiries into a taxpayer’s affairs by HMRC. We appreciate that enquiries into your tax affairs can be time consuming, stressful and costly. As such our aim is to bring the matter to a satisfactory conclusion as quickly as possible. In the following we set out the various steps to be taken by a taxpayer seeking to challenge an assessment (or amendment to a self-assessment return) by HMRC and explain how we can help you obtain the best possible result.

Initial Advice

HMRC are under a duty to collect taxes. While they will very often correctly assess the amounts of tax due it is unfortunately the case that they will not always do so. They may incorrectly apply statues or overlook relevant provisions or case law. While this may be readily detectable in some cases, that will not always be the case given the enormous and increasing complexity of UK tax law. As such, where there is some doubt as to whether a taxpayer has been correctly assessed to tax, it is almost always worthwhile as a first step to obtain the advice of an expert in UK tax law to determine the merits of the taxpayers case.

Barristers at Old Square Tax Chambers have significant expertise in researching and advising on disputes with HMRC and will be in a position to give you an unbiased and fully researched opinion as to the merits of HMRC’s position. This can be provided in conference or in writing. UK tax law is an enormously complex and expanding area with underlying case law expanding the meaning of many statutory provisions. As such, our expertise is very often invaluable at this point. Our experience is that we are able in a great number of cases to highlight and develop arguments which either or both of the parties have not considered, enabling us to help bring the matter to an early and successful conclusion. We cannot promise this in every case but we can promise that we will always provide a thorough and realistic appraisal of your prospects of successfully appealing any Revenue decision. This will enable you to be as fully informed as possible at as early a stage as possible.

Putting arguments to HMRC

Following the initial advice you will be in a position to put fully researched and carefully constructed arguments to HMRC in support of its position. As tax barristers we will be in a position to draft correspondence for you with HMRC, but are currently prevented by professional rules from entering into direct correspondence.

The vast majority of disputes which are dealt with by the barristers in Old Square Tax Chambers are successfully resolved at this point. For this reason, when faced with an enquiry into your tax affairs we suggest that you should obtain advice at as early a point as possible.

Appealing a decision of HMRC

In the event that you have been unable to persuade HMRC as to the correctness of your position HMRC will generally issue a closure notice giving their formal decision on the matter. (HMRC decisions and assessments can be made under various statutory mechanisms but at the time of a closure notice is most common). At this point, you as taxpayer can either decide to accept the conclusions of HMRC or decide to appeal them. (HMRC will generally make clear in any decision letter that you have a right to appeal and explain how the appeal can be made.) We will be able to help you in making this decision by providing an appraisal of the merits of any appeal, the risks involved and the likely costs.

Notice of appeal

If you decide to appeal, that must be done by notice in writing. The notice must be given to HMRC within 30 days. Furthermore, the First-tier Tribunal have recently held that is not enough to merely say that you wish to appeal a conclusion of HMRC, for a notice of appeal to be valid you must also set out the grounds upon which you wish to appeal the decision.

As tax barristers are experienced in drafting notices of appeal and formulating grounds of appeal as well as advising on the suitability of making an appeal.

Time limits for tax appeals

Although 30 days is a short period in which to make a decision as to whether to proceed with an appeal, the arguments of the parties will hopefully have been fully aired during any enquiry preceding the issue of the closure notice. In these circumstances the decision whether to appeal and the grounds of any such appeal will hopefully be clear so that the 30 day time limit causes no particular hardship.

Unfortunately, however, that is not always the case. If you are unsure it will often be better to preserve your rights by making an appeal which can be later withdrawn or amended as appropriate. Barristers at Old Square Tax Chambers will be able to assist in urgent cases as necessary.

In the event that you are unable to meet the 30 day time limit, there is statutory provision for a later notice of appeal to be given where HMRC consent or with the consent of the Tribunal. Once again, barristers at Old Square Tax Chambers can provide advice on this issue as necessary.

Payment of tax pending outcome of appeal

Notwithstanding any appeal, you will have to pay any tax which has been assessed unless you can get payment of that tax postponed. In direct tax cases, the tax assessed will be postponed provided that the taxpayer can show reasonable grounds for believing that he has been overcharged. This will generally not be a problem as long as you can show a bone fide dispute and generally HMRC will agree to this. If, however, HMRC do not agree to postpone tax, the question can be referred to the Tribunal. We will be able to assist and advise you if HMRC are seeking payment of tax before the appeal.

In indirect tax cases, the taxpayer must show that a requirement that he should pay the tax due before the outcome of the appeal would cause hardship. If HMRC do not agree to postpone tax, the question can be referred to the Tribunal, although there is no further appeal from the decision of the Tribunal.

On any further appeal, there is no provision for postponement of payment of tax, so that tax is paid (or not paid) in accordance with the decision appealed against.

Occasionally HMRC may threaten bankruptcy or liquidation if tax is not paid, even if the matter is under appeal to the Tribunal. The Courts have held that a bankruptcy petition by HMRC in these circumstances will not succeed if the taxpayer can show a bone fide dispute on substantial grounds. Barristers at Old Square Tax Chambers will be able to assist in resisting any such petition by HMRC if you find yourself in this position.

Review

You, as taxpayer have the right to require HMRC to review its decision before the matter is heard by the Tribunal. Alternatively HMRC may offer to review the matter. A review may uphold, vary or cancel a previous decision of HMRC.

You, as taxpayer may pre-empt a review by referring the appeal to the Tribunal immediately. We can advise you on the merits of asking for a review of your case.

Where you require a review, then HMRC must provide its initial view of the matter within 30 days or such longer period as is reasonable. There is then a further 45 days (or such other period as is agreed) for HMRC to notify you of (i) the conclusions of its review and (ii) the reasoning behind those conclusions.

Where HMRC offer a review, you must take care to respond to that offer of review promptly if you do not wish to compromise your rights. Where HMRC set out their initial view and offer a review, then unless you take certain steps you will be treated as accepting the view set forth by HMRC and be bound by it, notwithstanding the appeal.

The taxpayer may accept the conclusions of a review. If you do not, you have 30 days after the conclusions of the review are given in which to refer the appeal to the Tribunal for it to decide the matter (this is termed in the relevant legislation as notifying the Tribunal). If you do not notify the Tribunal of the appeal within the 30 day period, then you can only do so with the permission of the Tribunal.

The Tribunal

The majority of tax appeals are to be heard in the first instance by the Tax Chamber of the First-tier Tribunal with a right of appeal with permission to the Tax and Chancery Chamber of the Upper Tier Tribunal (although exceptionally appeals can be heard by the Upper Chamber in the first instance).

The Tribunal will only begin to deal with an appeal once it has been notified of that appeal. As noted, the review procedure places the onus of notifying an appeal on the taxpayer, particularly in circumstances where HMRC offer a review. An appeal is notified to the Tribunal by sending a notice of appeal to the Tribunal, which notice must contain the name and address of the appellant (normally you, the taxpayer) and the appellant’s representative as well as an address for documents to be sent. The notice must also give details of the decision being appealed, the result the appellant wishes and grounds of appeal. A copy of any written record of HMRC’s decision must also be included. As tax barristers we will be able to assist in the drafting of any notice of appeal and, more importantly, the grounds of appeal.

The standard form notice of appeal and accompanying guidance issued by the Tribunal can be found here.

Once the Tribunal has received the notice of appeal, it will allocate the appeal to one of four tracks depending upon the complexity and value of the dispute. Click here for further guidance.

The four tracks are as follows:

  1. (i) Default Paper cases will generally be dealt without a hearing. These cases are likely to involve appeals against fixed penalties.
  2. (ii) Basic cases will be dealt with by a hearing but on a more informal basis. These will include appeals against other penalties, including appeals for a reduction of penalties on grounds of reasonable excuse, applications for permission to appeal out of time and for postponement of tax.
  3. (iii) Standard cases will cover most other matters and will be dealt with on a more formal basis and with an exchange of evidence before the hearing;
  4. (iv) Complex cases will also be dealt with on a formal basis. These will be cases which require a lengthy hearing, have lengthy or complex evidence, involve a complex or an important principle or issue or involve a large sum of money.There is provision for these cases to be heard by the Upper Tribunal in the first instance.

The track which your case is allocated to is likely to have procedural and costs consequences which are to be borne in mind. We will be able to advise which track you are likely to be allocated to and the consequences of this. The manner in which the notice of appeal is drafted may affect the track which you are allocated to. We will be able to assist and advise on this.

Costs

One consequence of the track allocation relates to costs, both in relation to costs which are likely to be incurred by the parties and also in relation to the Tribunals jurisdiction to require either party to pay the costs of the other.

The general position is that the power to award costs is limited to cases where either party or his representative has acted unreasonably (which is likely to be construed narrowly having regard to the previous practice of the Special Commissioners, albeit in the context of the somewhat narrower ‘wholly unreasonably’ standard) or to cases where a person’s representative has caused wasted costs through improper or unreasonable conduct (which again is likely to be a rare occurrence). This will generally mean that each party will bear his own costs, regardless of the outcome of the case.

The exception to this is in “complex cases” where the default position is that the Tribunal has a wide jurisdiction to award costs unless the taxpayer elects that the more limited costs jurisdiction (the power to award only where a person has acted unreasonably) should apply. Where the wider costs jurisdiction applies, the taxpayer is at risk in relation to HMRC’s costs should he lose the appeal, but conversely may recover from HMRC costs incurred by his should he be successful. (This is unlikely, however, to cover the entirety of the costs incurred).

Because of this, it may be important for the appeal documentation to include a representation that the appeal be allocated to the complex track. We can draft this.

Where a case is allocated to the complex track, then as part of an assessment of the merits of the case and overall costs we will be able to advise you as to the suitability of making any election in relation to the costs.

Conditional fees

One means by which a taxpayer can sometimes reduce his costs is by instructing Counsel on a conditional fee basis. Under a conditional fee agreement the parties can agree that fees (or a proportion of them) will only be payable on a successful outcome, although generally with an uplift on the normal fee to reflect risks. (This is different from what is sometimes referred to as a contingent fee agreement where the fee may be related to the tax at stake – tax barristers are not permitted to enter into such agreements). The costs of a conditional fee agreement including the uplift can at present (where an appropriate costs jurisdiction applies) be recovered from the other side.

Such an arrangement can be particularly important where the potential costs might very well outstrip the tax at stake. Some of the barristers at Old Square Tax Chambers will be happy to take certain cases on a conditional fee basis. Cases will be considered on an individual basis with regard being had to the issues involved.

If you wish to instruct a tax barrister to act in your appeal on a conditional fee basis, our clerk, Tony Hall will be happy to discuss it further with you.

HMRC statement of case

The other significant consequence of the track allocation will be procedural. A number of procedural steps will occur and a taxpayer’s strategy needs to be carefully thought through. There are standard Directions which govern the progress of a case but these can be varied by agreement, which we will often recommend. In all cases except basic cases, HMRC must send a statement of case, setting out their position on the case including legislation relief upon. This must be provided within 42 days for Default Paper Cases and within 60 days for standard or complex cases.

This is a useful addition to the procedure in direct tax cases as it ensures that the HMRC case is fully explained at an early point. While this might be expected to have occurred at an earlier point, our experience is that this is not necessarily always the case. We will be able to advise at this stage in relation to any further arguments which HMRC might seek to raise.

In Basic cases, there is no requirement to provide a statement of case, but if HMRC seek to raise grounds for contesting the proceedings at the hearing which have not previously been notified to the taxpayer, they are required to notify the taxpayer of such grounds as soon as reasonably practicable and in enough detail to enable the taxpayer to respond to them at the hearing. As such, you should not be prejudiced by the absence of a statement of case in Basic track cases.

Response to HMRC

In a Default Paper case the taxpayer has a further 30 days to make a written reply to both HMRC and the Tribunal setting out any response and providing any further relevant information. You may also require that a hearing is to be held at this point.

In Standard and Complex cases there is no requirement for a reply, but the parties have a further 42 days in which to disclose documents upon which that party intends to rely on produce in the proceedings.

This will, however, be subject to any agreed variation to standard Directions. In most cases the Tribunal issues standard Directions. These will generally provide time limits for exchange of witness statements and other evidence before the hearing. In some cases it is appropriate to seek to agree different Directions, perhaps with a view to agreeing certain of the facts. Agreeing a Statement of Agreed Facts is almost always desirable as it can save time and costs at the hearing and sometimes provide further insight into HMRC’s approach. We will be able to advise you on this aspect of the case.

It is the experience of barristers at Old Square Tax Chambers that the preparation of the case at this point is very often of paramount importance. There are two aspects to most cases, establishing the facts as they happened and applying the law to those facts. The best legal arguments will be of no use unless the factual foundations have been established. The Tribunal will not and cannot take account of facts of which it is unaware. Proper preparation of appeals is crucial and the witness statements (sent to the Tribunal before the hearing) are vital documents.

It is not unheard of for a Tribunal to reach a decision based upon the facts before it which is at odds with what actually happened. Despite the merits of his case, the taxpayer may lose because he or she has not presented all of the relevant evidence to the Tribunal. As such, it is important before the appeal to determine what the legal arguments in favour of the taxpayer are, and what the facts underpinning those arguments are so that those facts can be fully and undeniably established. It is also important to test the robustness of the evidence for the taxpayer as it will undoubtedly be challenged by HMRC at the hearing.

It is on these aspects of the case that the input of an impartial tax barrister can be invaluable. Barristers at Old Square Tax Chambers have significant experience on dealing with these issues and on the approach of the Tribunal to them and can advise accordingly.

Public or private hearing

The general rule is that hearings will be held in public. If a private hearing is necessary to protect a person’s private life or confidential or sensitive information an application can be made for the hearing to be heard in private. Although the Tribunal is unlikely to accede to such a request without good grounds, it is likely to be sympathetic to requests that sensitive information is not disclosed unnecessarily.

Barristers at Old Square Tax Chambers will be able to advise as to how an appeal might be heard in private, or how it can be presented in a way which helps keep sensitive information out of the public domain.

Appealing decisions

A decision of the First-tier Tribunal can be appealed on questions of law to the Upper Tribunal. Permission is required for such an appeal which must be made within 56 days of the decision. The form for such an appeal can be downloaded here.

In the unfortunate event that you are in a position of needing to appeal from a decision of the First-tier Tribunal barristers at Old Square Tax Chambers will be able to assist in advising on the merits of any appeal and also in relation to the possible grounds as well as drafting such documentation as is necessary.

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