HMRC has the power, under the Taxes Management Act 1970, to commence a tax enquiry against an individual in respect of any self-assessment, believed to be incorrect and requiring further assessment, by issuing and serving upon that individual a Notice under s.9A of that Act (a ‘Notice’) in the prescribed manner.
Timothy Thompson of Kangs Solicitors reports upon a case recently heard in the Court of Appeal (Civil Division) in which the correct procedure for service of a Notice came under scrutiny.
The Circumstances | Kangs HMRC & Tax Solicitors
In response to a Tax Return submitted by Andrew Tinkler (‘Mr. Tinkler’) in January 2005 by his HMRC Tax agents, BDO, HMRC issued a Notice to BDO.
In August 2012 HMRC sought to amend the Tax Return by disallowing losses claimed by Mr Tinkler amounting to £2.5million.
Mr. Tinkler appealed the decision to the First Tier Tribunal on the basis that an enquiry had not been validly opened because HMRC, by serving Notice on BDO rather than him, being the ‘taxpayer’, had failed to properly serve a Notice.
As the result of the Tribunal finding a Notice had not been validly served, thereby invalidating that Notice, HMRC appealed to the Upper Tribunal which disagreed with the First Tier Tribunal declaring that a Notice could validly be served on a taxpayer via his agent maintaining that Form 64-8 allows tax agents to receive a Notice from HMRC, thereby permitting HMRC to serve a Notice via an agent.
Mr. Tinkler appealed to the Court of Appeal (Civil Division).
The Court Of Appeal Decision | Kangs Tax Tribunal Appeal Solicitors
Mr. Tinkler was successful as The Court of Appeal reversed the Upper Tribunal decision and supported the decision of the First Tier Tribunal stating:
On Form 64-8 and their online guidance, HMRC acknowledge that a “notice of enquiry” is a form which “must” be sent to taxpayer and the authority to deal with the agent is limited correspondence in relation to such enquiries, reflecting an agreement with professional bodies.
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