A special commissioner dismissed an application to set aside or vary the decision of another commissioner made in the taxpayer's absence where the first commissioner had taken into account the taxpayer's reasons for not attending in deciding to go ahead with the hearing and the taxpayer had failed to provide any new reasons for his absence.

Facts

In December 2005 Revenue and Customs amended the taxpayer's return for the period to 5 April 2005. The taxpayer appealed. The appeal was heard in the taxpayer's absence. The decision of the special commissioner (Michael Tildesley) dealt at some length with his reasons for rejecting the taxpayer's application for postponement ((2007) Sp C 654). The special commissioner had decided that the taxpayer was chargeable to tax under Sch. E pursuant to ICTA 1988, s. 600 on the transfer payment of deferred benefits from one pension scheme to another where he had failed to show that he was employed by the second company and so did not comply with the rules of its pension scheme.

The taxpayer wrote to the special commissioners asking for the decision to be set aside. He argued that there should never have been a hearing in the first place but explained that his failure to appear was because his wife had been very ill. The commissioner treated the taxpayer's letter as an application under reg. 19 of the Special Commissioners (Jurisdiction and Procedure) Regulations 1994 (SI 1994/1811) for the court to review and set aside or vary the decision in principle or final determination. The commissioner directed the taxpayer to lodge a statement setting out in full the reasons for his failure to appear at the hearing and to support his statement with any documentation relating to the state of health of his wife.

Issue

Whether the taxpayer had provided good and sufficient reasons why the commissioner's decision should be set aside.

Decision

The special commissioner (Sir Stephen Oliver QC) (dismissing the application) said that reg. 19(1)(b) had evidently been installed in the regulations to enable reconsideration of the decision given in the absence of a party where there was good and sufficient reason for his absence. Typically it would apply and enable reconsideration to take place where something unexpected and unavoidable had prevented the party from attending. It was not designed to apply where the special commissioner who heard the case had already looked into the circumstances of the party's absence and concluded that it was right to go ahead.

Here the special commissioner had considered the circumstances of the taxpayer's absence. He then gave a reasoned conclusion as to why the hearing should go ahead.

He had before him the taxpayer's letter to the clerk to the special commissioners, and a subsequent e-mail and letter from the taxpayer. He observed in para. 9(2) of the decision that the taxpayer had had ample time to prepare his appeal for the reasons there explained.

The taxpayer's letter of 16 December 2007 contained nothing new. In particular, it provided no specific reason why the taxpayer could not actually get to the hearing. His further letter of 13 January 2008 contained as an enclosure the doctor's letter. This again gave no indication as to the state of health of The special commissioner had decided that the taxpayer was chargeable to tax under Sch. E pursuant to ICTA 1988, s. 600 on the transfer payment of deferred benefits from one pension scheme to another where he had failed to show that he was employed by the second company and so did not comply with the rules of its pension scheme.

The taxpayer wrote to the special commissioners asking for the decision to be set aside. He argued that there should never have been a hearing in the first place but explained that his failure to appear was because his wife had been very ill.

The commissioner treated the taxpayer's letter as an application under reg. 19 of the Special Commissioners (Jurisdiction and Procedure) Regulations 1994 (SI 1994/1811) for the court to review and set aside or vary the decision in principle or final determination. The commissioner directed the taxpayer to lodge a statement setting out in full the reasons for his failure to appear at the hearing and to support his statement with any documentation relating to the state of health of his wife.

Issue

Whether the taxpayer had provided good and sufficient reasons why the commissioner's decision should be set aside.

Decision

The special commissioner (Sir Stephen Oliver QC) (dismissing the application) said that reg. 19(1)(b) had evidently been installed in the regulations to enable reconsideration of the decision given in the absence of a party where there was good and sufficient reason for his absence. Typically it would apply and enable reconsideration to take place where something unexpected and unavoidable had prevented the party from attending. It was not designed to apply where the special commissioner who heard the case had already looked into the circumstances of the party's absence and concluded that it was right to go ahead. Here the special commissioner had considered the circumstances of the taxpayer's absence. He then gave a reasoned conclusion as to why the hearing should go ahead. He had before him the taxpayer's letter to the clerk to the special commissioners, and a subsequent e-mail and letter from the taxpayer. He observed in para. 9(2) of the decision that the taxpayer had had ample time to prepare his appeal for the reasons there explained.

The taxpayer's letter of 16 December 2007 contained nothing new. In particular, it provided no specific reason why the taxpayer could not actually get to the hearing. His further letter of 13 January 2008 contained as an enclosure the doctor's letter. This again gave no indication as to the state of health of the person in question at the time of the hearing in October 2007. In essence, the reasons given by the taxpayer for his absence, in support of his application for the decision to be reviewed and set aside, were substantially the same as those reasons that were presented in writing to the commissioner at the appeal hearing. Those reasons were taken into account in deciding to go ahead with the hearing in the taxpayer's absence.

It was not for a second special commissioner to go ahead and hear the appeal. His sole authority was to look at the circumstances of the taxpayer's absence, being circumstances that were not available to the special commissioner at the time, and to decide whether the taxpayer had good and sufficient reasons for failing to appear. In this case, the taxpayer had advanced no further reasons and so the commissioner was unable to allow the taxpayer's application. The question whether the special commissioner's decision to go ahead was reasonable lay within the judicial review function of the High Court and not with this tribunal.

(2008) Sp C 662.

Decision released 7 February 2008.