A special commissioner dismissed an appeal by the taxpayer against a closure notice in respect of his self assessment return where he failed to turn up at the hearing without explanation and had provided no evidence to support his appeal.

Facts

The taxpayer appealed against a closure notice issued under the Taxes Management Act 1970, s. 28A in respect of his self-assessment return for 2003–04; other assessments for earlier years had since been vacated. The notice of appeal was given by the taxpayer's then advisers but when he failed to respond to their enquiries in the course of the Revenue's enquiry, they resigned from their appointment to act as his accountants and tax advisers.

The taxpayer was notified of the date of hearing of his appeal, but did not respond, nor did he attend the hearing. As a result, the Revenue applied for the hearing to proceed in his absence under reg. 16 of the Special Commissioners (Jurisdiction and Procedure) Regulations 1994. As there had been no contact from the taxpayer and no representations had been made on his behalf, the Revenue's application was granted. Throughout the course of the enquiry, and subsequently, attempts had been made to contact the taxpayer and to interview him, although there was no requirement to attend an interview. The taxpayer had declined to meet with the Revenue officers and there had been no direct contact with the taxpayer, even after he had dispensed with the services of his tax advisers.

The Revenue referred to TMA 1970, s. 50(6) which provided that if it was established by evidence at the appeal hearing that the taxpayer was overcharged by a self assessment, the assessment or amounts should be reduced accordingly, but otherwise the assessment should stand good. They argued that the onus was on the taxpayer to support the return which he had made and to demonstrate that he was overcharged by the self assessment. If he failed to do so then the assessments should stand good. They submitted that the appeal should be dismissed.

Issue

Whether there was evidence to displace the conclusion that the closure notice was properly issued.

Decision

The special commissioner (John Clark) (dismissing the appeal) said that he accepted the Revenue's contention that it was for the taxpayer to show that he had been overcharged by the self assessment as amended following the enquiry into his return. His failure to make any contact with the Revenue following the resignation of his tax advisers had meant that no further explanation had been given for the difference between the figures as originally shown in the return and those proposed by the Revenue officer. The taxpayer needed to provide clear evidence to counteract the conclusions arrived at by the Revenue officer as a result of the enquiry into his personal self- assessment return. In the absence of such evidence, his appeal had to be dismissed.

At no stage were the grounds of appeal set out in full, as requested by the Revenue. As a result of that and the lack of any appearance by or on behalf of the taxpayer it had not been clear what the precise basis was for the appeal. Secondly, it was not clear why the appeal was made to the special commissioners rather than to the general commissioners. Under the present tribunal structure, this was the type of case which would normally be expected to be heard by the general commissioners. If the grounds of appeal had been clearly stated, it might have been clearer whether it would have been more appropriate for the general commissioners to hear the appeal.

Under reg. 19 of the 1994 regulations, it was possible for a party who was entitled to be heard at a hearing but failed to appear or be represented to apply to a tribunal for a review of the final determination of an appeal. Such an application had to be made no later than 14 days from the date on which the decision was sent to the parties. The taxpayer should note that, in order to have this decision reviewed in that way, he had to demonstrate that he had good and sufficient reason for failing to appear or be represented.

(2007) Sp C 623.
Decision released 30 July 2007.