The Subway London Ltd decision contains a lengthy section of how the Tribunal should consider late Applications and Appeals. It is a useful resource.
It refers first to the Upper Tier decision in Martland. This decision has become the standard test for the FTT in considering late Applications and Appeals. It proposes three tests;
What is the length of the delay?
What is the reason for the delay?
What are the full circumstances?
The FTT also quoted the Upper Tier decision in Katib
I have said previously that the conduct of the taxpayer’s adviser in Katib was somewhat striking. The Tribunal described it as “extraordinary” and, having considered the findings of fact made by that Tribunal, I can only agree. An example of that conduct, referred to by the Upper Tribunal, was that Mr Bridger’s advice included that Mr Katib should cease to be a man by making a declaration to that effect to enable Mr Bridger to communicate to the world that Mr Katib was dead.
The relevance of those decisions applies to the argument in Subway London since the taxpayer’s previous adviser was dilatory or incompetent, or whether he misled his client. “This core complaint is not as uncommon as it should be”
When does an adviser’s failure absolve the taxpayer from his legal responsibilities? The Upper Tier in Katib said: “it cannot be the case that a greater degree of adviser incompetence improves one’s chances of an appeal.”
The Tribunals and Courts have tended to the position that the taxpayer remains fully responsible for the proper and timely conduct of his appeal. Any failure by an adviser can be pursued by a claim for damages. Even though a taxpayer will probably lack specific tax knowledge (which is why he has an adviser) he must ensure periodically that matters are proceeding properly.
As an adviser myself, the responsibility is to appraise the client of how matters will proceed, what information will be required, and what the time scales are, etc.