In Citipost Mail v HMRC [2015] UKFTT 252 (2 June 2015), the FTT found that the taxpayer should not be granted permission to make a late appeal.
The issue was whether Citipost should be allowed to make a late appeal against post-clearance demand notes (PCDNs) issued by HMRC.
The first question was the approach the FTT should follow. Should it adopt the ‘three stage approach’ set out in Denton v White [2014] EWCA Civ 906, where ‘all the circumstances’ are not considered until the third stage; or follow Data Select v HMRC [2012] UKUT 187, which has no three-stage approach but only requires that all the circumstances be considered and balanced. In Leeds City Council v HMRC [2014] UKUT 350, the UT had held that the correct approach was that of Data Select; whereas in McCarthy & Stone (Developments) Ltd [2014] UKUT 196, the UT had found that the Denton approach should be followed.
Choosing to follow Leeds, the FTT noted that when the Court of Appeal had found in Denton that a three-stage test must be used, it had been giving guidance about the operation of the CPR, which, inter alia, emphasise the saving of costs. The tribunal rules do not have such an emphasis. The FTT would therefore give equal weight to all factors.
In this particular case, the FTT noted the very significant length of the delay, the lack of any good reason for not appealing within the time limit, and the need to ensure fairness as between taxpayers. The factors outweighed the only factor for permission, that of risking the payment of money which may not be due.
Why it matters: Faced with contradictory case law of equal standing, the FTT had to choose. It remains to be seen whether a differently constituted FTT will come to the same conclusion.
In Citipost Mail v HMRC [2015] UKFTT 252 (2 June 2015), the FTT found that the taxpayer should not be granted permission to make a late appeal.
The issue was whether Citipost should be allowed to make a late appeal against post-clearance demand notes (PCDNs) issued by HMRC.
The first question was the approach the FTT should follow. Should it adopt the ‘three stage approach’ set out in Denton v White [2014] EWCA Civ 906, where ‘all the circumstances’ are not considered until the third stage; or follow Data Select v HMRC [2012] UKUT 187, which has no three-stage approach but only requires that all the circumstances be considered and balanced. In Leeds City Council v HMRC [2014] UKUT 350, the UT had held that the correct approach was that of Data Select; whereas in McCarthy & Stone (Developments) Ltd [2014] UKUT 196, the UT had found that the Denton approach should be followed.
Choosing to follow Leeds, the FTT noted that when the Court of Appeal had found in Denton that a three-stage test must be used, it had been giving guidance about the operation of the CPR, which, inter alia, emphasise the saving of costs. The tribunal rules do not have such an emphasis. The FTT would therefore give equal weight to all factors.
In this particular case, the FTT noted the very significant length of the delay, the lack of any good reason for not appealing within the time limit, and the need to ensure fairness as between taxpayers. The factors outweighed the only factor for permission, that of risking the payment of money which may not be due.
Why it matters: Faced with contradictory case law of equal standing, the FTT had to choose. It remains to be seen whether a differently constituted FTT will come to the same conclusion.
