Tribunal Denies Late Appeal in Green v HMRC HICBC Case, Emphasizing Timely Compliance with Statutory Limits

Citation: [2023] UKFTT 1006 (TC)
Judgment on

Introduction

In the case of Clive Green v The Commissioners for HMRC, First-tier Tribunal (Tax Chamber), a significant decision was rendered concerning an application to make a late appeal against discovery assessments relating to the High Income Child Benefit Charge (HICBC). The tribunal’s judgment elucidates the legal principles surrounding the granting of late appeals and highlights the jurisdictional approach towards statutory time limits and the obligations of taxpayers.

Key Facts

The appellant, Clive Green, failed to appeal within the statutory 30-day period against discovery assessments issued by HMRC concerning HICBC for the tax years 2014/2015, 2015/2016, and 2016/2017. Specifically, the appellant sought to appeal 1067 days after the statutory deadline had elapsed. HMRC opposed the application, triggering a tribunal to determine the matter. Notably, the assessments in question were issued under the legislative framework that was later clarified by the Finance Act 2022 following the Upper Tribunal decision in HMRC v Jason Wilkes [2020] UKUT 0150 (TCC).

The tribunal’s analysis was guided by several legal principles, most prominently the criteria for allowing a late appeal as explicated in the cases Martland v HMRC [2018] UKUT 178 (TCC) and HMRC v BMW Shipping Agents [2021] UKUT 0091. These principles require the tribunal to follow a three-stage process:

  1. Length of the Delay: Assessing whether the delay is short enough to be considered “neither serious nor significant,” and thereby not requiring an extensive evaluation of the two subsequent stages.

  2. Reason for the Delay: Identifying the reasons for the delay without evaluating the merits of those reasons at this juncture.

  3. Evaluation of All Circumstances: Conducting a balancing exercise to weigh reasons for the delay and the merits of the appeal against the prejudice of granting or refusing the late application, whilst giving weight to the needs for efficient litigation and adherence to statutory time limits.

In applying these principles to the instant case, the tribunal discerned that the delay was substantial and weighed the appellant’s reasons for delay against the potential prejudice to either party. The tribunal also considered that the safe harbor provisions brought by Section 97 of the Finance Act 2022, providing retrospective validation of discovery assessments for HICBC, were not applicable as the appellant’s notice of appeal post-dated the cut-offs specified within the statute.

Outcomes

Upon applying the legal principles, the tribunal decided to dismiss the appellant’s application for late appeal. Despite the sympathy for the appellant’s lack of awareness regarding HICBC, the tribunal found that there were insufficient meritorious reasons to justify the delay. Additionally, they assessed that the appellant lacked a realistic prospect of success in the substantive appeal due to the timing of the discovery assessments and the post-Wilkes legislative amendments.

Conclusion

The tribunal’s decision in Clive Green v The Commissioners for HMRC [2023] UKFTT 1006 (TC) serves as a precedent for taxpayers and legal professionals in the UK, emphasizing the strict adherence to statutory time limits for appeals and the limited circumstances under which late appeals may be granted. It also reaffirms the legal principle that ignorance of the law, in this case, the HICBC, is not a sufficient ground for the considerable delay in initiating appeals against tax assessments. The judgment underscores the importance of taxpayers’ awareness and timely action concerning their obligations under the tax law.

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