Dishonest conduct ruling set aside

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Following criticism of the decision to uphold a dishonest conduct notice against a tax agent, the first tier tribunal (FTT) set aside that conclusion and the case will be reheard.

In August Andy Keates reported on the first known tribunal case where a tax agent (Rodgers: TC06617) lost his appeal against the issue of a conduct notice by HMRC under the dishonest conduct rules.

To be guilty of dishonest conduct the individual has to have an intention to be dishonest and this factor was not tested at the FTT, as Rodgers was not able to attend the hearing to give evidence in person.

Injustice

On 8 November, tax legend Robert Maas wrote about the Rodgers case in Taxation Magazine pointing out the injustices in the procedure, as he perceived them.

Rodgers was entitled to attend the FTT hearing, but had written to the FTT saying he couldn’t attend because he had to care for his disabled wife and was unable find or pay for a substitute carer.

The FTT offered to hear Rodger’s evidence by telephone using a conference call facility but the recorded-delivery letter including this offer and details of how to call the tribunal did not arrive with Rodgers until 12 noon on 24 April. The hearing was due to start at 9.30am that day, and Rodgers probably thought that he had missed his chance to give oral evidence.

When the judge found that Rodgers had not joined the conference call at the start of the hearing, he adjourned the case until 2pm the same day. However, Rodgers didn’t know about the adjournment and had no way of finding out, as he could not afford to pay for professional representation at the hearing.

As Maas pointed out, the tribunal headquarters in Birmingham would not have known that the hearing had been adjourned, so it would not have been able to inform Rodgers of this fact even if he had enquired. However, why would Rodgers call the tribunal administrative centre on the off-chance that the hearing had been postponed?

Implications

As Rodgers lost his appeal against the conduct notice, HMRC can hit him with a penalty of between £5,000 and £50,000.

HMRC can also demand access to all of Rodgers’ client files, not just files relating to those clients who were involved in allegedly dishonest behaviour which prompted the issue of the conduct notice. The combination of those actions and the threat to “name and shame” Rodgers would effectively destroy his business.

Rodgers wrote to the FTT after the hearing requesting an appeal and said “I am not very hopeful of succeeding in my appeal but if HMRC try to use the same tactics on another person I hope they can find my details so they can see that somebody else has been treated the same way and maybe somebody at HMRC might realise they maybe how they do things is not right.”

In spite of this plea, Rodgers was refused permission to appeal the FTT decision to the Upper Tribunal.

Rethink

The FTT judge (Rupert Jones) clearly read Robert Maas’s article, as he made reference to it in a fresh decision published on 30 November (TC06852), which contains further details of Rodgers’ problems trying to provide care for his disabled wife and the court’s attempts to contact him.

The Judge concluded: “The tribunal has had its attention drawn to an article appearing in Taxation Magazine published on 8 November 2018 criticising the tribunal’s decision dated 31 July 2018 (the decision). The criticism is to the effect that there was a lack of procedural fairness in the hearing of the appellant’s appeal which took place at Leeds Magistrates’ Court on 24 April 2018. The article suggested that justice was not seen to be done.”

He went on to rule that the tribunal “has decided that it is in the interests of justice to exercise its power to set aside the decision.”

Conclusion

Rodgers did admit to falsifying VAT invoices and has probably lost his entire business as a result. However, he should be entitled to justice and that justice must be seen to be done. The case will be reheard with a fresh tribunal consisting of a judge and lay member.

About Rebecca Cave

Consulting tax editor for Accountingweb.co.uk. I also co-author several annual tax books for Bloomsbury Professional and write newsletters for other publishers.

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04th Jan 2019 16:08

Yes, I disagreed with the comments in the article in the link below and agreed entirely with Robert's comments in Taxation Magazine:

https://www.accountingweb.co.uk/tax/hmrc-policy/tax-agent-accused-of-dis...

Furthermore, the standard of proof for dishonesty/fraud allegations is quite high and the allegation must be made fairly per the case in the link below:

http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j10855/TC...

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avatar
04th Jan 2019 16:09

Furthermore, the standard of proof for dishonesty/fraud allegations is quite high and the allegation must be made fairly per the case in the link below:

http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j10855/TC...

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