V19142
Cavendish Financial Management Ltd v Revenue and Customs [2005] UKVAT V19142 (29 June 2005)
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19142
Value added tax – penalties - default surcharge – whether postal problems a reasonable excuse – no
LONDON TRIBUNAL CENTRE
CAVENDISH FINANCIAL MANAGEMENT LTD Appellant
- and -
HER MAJESTY'S REVENUE AND CUSTOMS Respondents
Tribunal: Dr. David Williams(Chairman)
Angela West FCA (Member)
Sitting in public in Cardiff on 20 April 2005
The Appellant did not appear and was not represented
Mr J Holl, Officer of HMRC, for the Respondents
© CROWN COPYRIGHT 2005
DECISION
- The Appellant did not attend the hearing. In reply to a telephone enquiry by the clerk at the chairman's direction, it was stated for the Appellant that it had not received notice of the hearing and would not be attending. The tribunal noted from the file that notice of the hearing was sent to both parties on 30 December 2004 and the notice to the Appellant company was properly addressed. Mr Holl confirmed that the Respondents received proper notice at that time. Having heard from the clerk and Mr Holl, the tribunal was satisfied that notice was properly sent to both parties for the hearing, and it saw no good reason fro the matter to be postponed further. The tribunal therefore agreed with the Respondents' application that the matter be heard in the absence of the Appellant company or any representative under Rule 26 of the Value Added Tax Tribunal Rules 1986.
- The tribunal agreed with Mr Holl that the only issue under appeal was whether the Appellant company had any defence to the default surcharge raised against it. The available defences were those in section 57 of the Value Added Tax Act 1994, the burden of proof being on the Appellant.
- The only substantive issue was whether there was a reasonable excuse for the delay in making the return, and paying the value added tax due with that return, for the period ending 31 December 2003. That return and the tax were due to be received by the Respondents on 31 January 2004. Having heard evidence of the handling of postal returns, the tribunal accepts that those documents were received on 16 February 2004 and not before. They were therefore late.
- The only reason that appeared to be offered for this by the Appellant related to postal problems under section 57(1)(a) of the 1994 Act, as there was no indication of any relevant reasonable excuse under section 57(1)(b). But the tribunal agreed with Mr Holl that that ground of appeal appeared unarguable on the face of the Appellant's own documents. The letter from the Appellant about the delay dated 25 March 2004 unambiguously stated that the letter with the return was sent on 31 January 2004, and the cheque used for payment was also dated 31 January 2004. As they were sent by post, and not handed in, it must follow that the delay was at least in part due to the date of signing the cheque and posting that and the return regardless of any other reason.
- The tribunal considered whether there was any other issue in the papers that should be considered as relevant to the Appellant's appeal but saw none. It therefore dismisses the appeal and confirms the decision of the Respondents that the Appellant is liable to pay the default surcharge.
- The tribunal records that, under Rule 26, a tribunal may set aside any decision given in the absence of a party on such terms as it thinks just if that party applies serves an application at the tribunal centre within 14 days of the release of a decision. The tribunal also records that under Rule 29 it may consider directing the payment of costs of the other party incidental to and consequent upon an appeal or application.
DAVID WILLIAMS
CHAIRMAN
RELEASED: 29 June 2005
LON/2004/1059
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