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Tribunal decides cases on the papers

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As at 16 June 2020, 443 cases listed for hearing before the tax tribunal up to the end of August had been cancelled as a result of coronavirus. Of those, 62 had been relisted with a further 223 in the process of relisting and 53 having judicial directions for face-to-face hearings.

The figures, obtained by global law firm Bryan Cave Leighton Paisner (BCLP) under a freedom of information request to the Ministry of Justice, provide insight into the extent of the disruption caused by the pandemic.

Of particular interest is the categorisation of cases since the start of lockdown. In the period from 23 March to 16 June 2020, the tax chamber heard 119 cases remotely, of which 14 were video hearings, 35 telephone hearings and the remainder decided on the papers. In the following period to the end of the year, 103 cases are listed with 34 video and 30 telephone hearings, and 39 paper determinations.

Kate Ison, tax partner at BCLP, commented that the figures ‘reveal the extent of the backlog the tribunal is dealing with as a result of the pandemic’. Ison noted that ‘of the 119 cases that have been heard remotely from the start of the lockdown until mid-June 2020, the vast majority were dealt with on the papers’ and that ‘some positives may emerge from this; to the extent that cases are appropriate to be determined on the papers, the tribunal should continue to embrace this practice once the pandemic is over in order to reduce the number of cases required to be heard in person. This would assist in reducing delays before more complex cases were heard, thereby assisting taxpayers to have certainty without unnecessary and prolonged delay.’

Allocation of cases to the default paper category should be of little surprise, given the FTT’s Covid-19 ‘categorisation of cases’ practice statement which set out that, until at least September 2020, appeals against penalties of no more than £20,000 for late payment of taxes, and for late filing of returns and other documents, would automatically be allocated to the paper category. This is a tenfold increase in the previous threshold for paper cases, designed to allow more cases to be decided on an ongoing basis without the need for a hearing.

The chamber president had previously addressed media criticism of the tribunal’s caseload directly, in a statement (reported in Tax Journal, 20 May 2020) highlighting that the tribunal was ‘open for business’ and dealing with appeals either on the papers or by remote hearing, pointing out that the number of cases outstanding at the end of March 2020 was lower than the equivalent figure for five out of the previous six years.