It's an appeal against a penalty for £500 for a late P35. I'm now getting nervous about the hearing. I'm told it is informal, but upon reading a book called 'Dealing with Revenue Enquiries' by Michael Reader I discover that there is a set 'order or proceedings' - apparently the burden of proof in PENALTY proceedings is on the Revenue and ....
It goes on to say that it the benefit of having 'the last word' cannot be over emphasised and that whoever has the3 burden of proof also has the last word. Thus in my case the Revenue have the last word. However, if I had not read this book last night, I wouldn't have had any idea of the order and would have looked an idiot. Suppose the burden of proof was on me, and I was consequently first up - I wouldn't have a clue.
What am I supposed to do. Too late to go back now. Am I too inexperianced?
Will they charge interest on the £500 penalty or even worse award costs to the Revenue when (if) they win?
I do have some guts and now that I know about order of proceedings will probably still attend as the accountant, but will I have any more hidden surprises?
Please advise re the interest / costs etc if you can.
Many thanks.
Ian Barlow
Related resources
Replies (6)
Please login or register to join the discussion.
Proceedings
I have only had experience of one such hearing.
At the beginning of the hearing the Clerk explained that proceedings were to be informal, and that we didn't need to worry as it would not be like being in a court of law.
That said, he went on to accuse us of 'leading the witness'(at which point procedings felt distinctly formal), because we had formulated our questions to the client in such a way that she needed only give yes or no answers on the whole. The reason for formulating the questions in such a way was basically to make procedings as painless as possible for the client who was quite worried about being there. Our presentation had to dramatically adjusted 'on the hoof'.
I would recommend that you phone the clerk and ask for an explanation of procedings. You only get one chance to present your case and may not get a right to reply if the Revenue put something forward that you are not expecting. You need to know for sure who goes first, you or the Revenue, and whether you get to speak again after the Revenue or not.
Also, this may be stating the obvious, but the client must be there, as you cannot give evidence on their behalf.
All this aside, we did actually go on to win the case, but the learning curve involved was pretty steep.
I hope this helps, but would just reiterate - I've only been to one....
Good Luck!
Let the client speak
Whilst each hearing will be different, where the client is able/willing to do so I've found it productive to let the client speak rather than be led; the GCs are mostly business people themselves, and if you can get a bit of affinity going between them and the client it works well.
However, as other posters have said, keep the Clerk happy and on side.
Rough Justice
I have won some and lost some! Each division of General Commissioners is different. The advice of Lis Daly is good - have a word with the Clerk before the meeting day about procedure, i.e. who goes first, who has the last word, do you stand up or sit down etc?
Remember that the Chairman and other Commissioners are not tax experts, so that it is best to concentrate on practical issues. In some instances it is wise to agree a statement of facts and produce enough copies for all concerned. I think that Lis was unlucky - my experience has been that you can lead a witness before the GCs.
One vital point is that if you have 'the last word' you cannot at that stage introduce new material that you did not include in your opening speech. You can only reiterate what you have already stated and (hopefully) pick holes in the Revenue's arguments.
Although mnay hearings are held in magistates' courts, your client and you must remember that no-one is on trial. The appeal is a tribunal hearing, the purpose of which is to resolve disputed facts and perhaps law.
Good luck. Look the Chairman straight in the eye, and appear confident even if you do not feel it.
NOTICE OF HEARING
Has sufficient notice been given?When was the notice issued?When was it received by the appellant?What is the date of hearing?
Refer to the decisions in Wing Hung Lai v David Bale Spc 0023 1999, Self Assessed v HMIT Spc 207 1998, Holly & Another v HMIT Spc 00225 1999.
If not, inform the clerk in writing and by telephone that the notice is invalid - this should give you more time to prepare.
Many appellants consider that the GC are a rubber stamping body for the IR.
Don't Worry
From someone who has attended many Commissioners hearings representing the Revenue, I can confirm the informality of it all.
All I would say is that the Commissioners are there to decide on the facts of the case according to the statute. So for instance pleas about the size of the penalty in relation to the size of the business (and these P35 penalties can be very onerous - e.g one employee and 5 months late = £500) will fall on deaf ears.
If the return was late and you haven't got an extraordinarily good excuse, I can't see your appeal suceeding. Good luck and let us know the outcome.