Over the many years I have handled direct tax enquiries there have been very isolated occasions where post to or from HMRC has not been received.
In September 2018 neither the client nor I received a S9A opening letter and it was not until a Sch.36 letter was received that we both became aware of the enquiry. I immediately contacted HMRC by phone, explained the problem adding that the Sch.36 letter was issued after the date the enquiry window closed and as the S9A notice had not been received the enquiry was surely not valid. The officer was adamant that the S9A letters had been issued and offered to issue copies, which I felt missed the point. I appealled the Sch.36 notice and made reference to EM1525. The officer asked how long the client had been at the address, whether other correspondence had gone missing with the same questions also directed to us. It is very odd that two letters issued on the same date should go missing but they have.
A review has been undertaken by HMRC who have decided that the S9A notice was issued 'in good time' and was therefore valid adding that 'no evidence the notice was not served has been provided to date'. Just what form such evidence would take escapes me.
I intend taking matters further but would be interested to learn whether others have had similar experiences with HMRC mail and whether this is a widespread issue which HMRC needs to take more seriously?
Thank you
Don
Replies (9)
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You'll be fighting against S7 Interpretation Act which generally deems notices to have arrived as they would in the ordinary course of post.
Evidence of failure would be the notice being returned undelivered by the PO.
'no evidence the notice was not served has been provided to date'.
You are on a hiding to nothing there then. How can you provide evidence of something not happening? Having said that, I suspect that HMRC have the law on their side in terms of notice having been served.
You might hope that for something as potentially important, they could stretch a point and use some recorded service.
I have had a similar situation. During an ongoing saga of an investigation, both myself and my client received a letter chasing a reply to an earlier letter. Neither of us had received this earlier letter, the inspector was understanding and a little doubtful at the same time. Now that the investigation is nearly finalised we are negotiating penalties and "my slow response time" has become an issue. How can I reply to something I do not have!!!!!
Did earlier correspondence cause you to believe the S9A letter may be coming? If so perhaps you could have been more proactive
Not a criticism just a thought
This should form part of your appeal in that you were not and could not be aware that a letter may be issued and consequently you could not enquire about it's non arrival
I've just been informed by a client that they have received a closure letter last month.
One hasn't been received by me!
I acted for a client who was fined by Cos House for late filing of accounts which he personally posted. He refused to pay the fine and was sued. The case was decided by the judge on the basis that the letter had been posted and received but was lost in Cos House system. An appeal was threatened but never materialised.
Strangely 3 months after the court hearing the accounts showed up in Cos House listings