The Tribunals tend to be quite strict on late appeals. The lead cases give little room for manoeuvre.
The Upper Tier has heard an out-of-time Appeal, which addresses the ‘usual’ issues and also raises further points.
The taxpayer, Websons (8) Ltd had made a claim for overpaid VAT output tax of around £98,000 declared on takings from electronic lottery machines. Their appeal was following the lead Rank Group case.
There was a six year delay between the HMRC review decision and submitting its Appeal to the Tribunal Centre. The company argued that neither it nor its representative received the HMRC decision. This begs the question that, since the agent was responsible for similar claims from other companies, why he/she did not chase HMRC for the reply.
Para 44 of the Upper Tier decision explains the usual Martland approach to such appeals, and how the FTT, in the first instance, should consider the facts.
The company also raised the argument that it should be granted leniency because their case was listed behind the lead case. Their case would be heard as part of the lead appeal in any case, so the delay is not relevant. This case was addressed in the Romasave (Property Services) Ltd Upper Tier decision. It said that the existence of other related appeals should not be a material factor for the FTT to consider.
The Upper Tier criticised both parties for their failure to provide good evidence before the FTT. In referring the case back to the First Tier (although differently constituted), the Upper Tier directed that both parties provide fuller factual evidence. Although a 6 year delay is usually decisive against the taxpayer, the Upper Tier was careful not to pre-judge the decision, and directed that the FTT re-hear the matter. Paras 57-64 explain this unusual process.