Combative agent no match for statutory legislation
Despite the agent’s rage, an IR35 appeal against HMRC’s view that a tennis commentator should be regarded as an employee of the broadcaster, was denied because it was late.
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Yes, as I said here, brusqueness will not get you anywhere with HMRC (quite the opposite).
https://www.accountingweb.co.uk/any-answers/damning-late-pta-refusal-vat...
And it certainly did not impress the judge.
Although you are legally quite right, this is a case of compliance coming before common sense. 60 days late? Really?
It would have been better if the FTT had actually taken into consideration that HMRC hadn't addressed the points made by the agent.
Sometimes, just sometimes, maybe compliance should have a bit of flexibility.
The problem is that is not the point of law. There was a determination by "agreement"; the default if neither of the statutory options were taken forward. Unfortunately, the wording in the response by the agent seemed to imply there was nothing to gain from a review and did not indicate an appeal to the tribunal.
It does make me wonder if an argument could have been made at the FTT that the response was a de facto an appeal to the Tribunal as it was clear there was no faith in a review. I doubt it would have gained much traction.
Back in the day before Tribunals, the local Inspector might have been too embarrassed to take the case to the General Commissioners as he/she would have to be going back month after month in front of the same Commissioners, who generally had a sense of fair play.
I completely understand the emotionally charged response which is the curse of email (too easy to do compared to a letter). Who has not experienced that sort of frustration? It is a sharp reminder that you should write the response you would like to send to get it off your chest and park it. Then send the response you need to send.
The problem is that is not the point of law. There was a determination by "agreement"; the default if neither of the statutory options were taken forward. Unfortunately, the wording in the response by the agent seemed to imply there was nothing to gain from a review and did not indicate an appeal to the tribunal.
It does make me wonder if an argument could have been made at the FTT that the response was a de facto an appeal to the Tribunal as it was clear there was no faith in a review. I doubt it would have gained much traction.
Back in the day before Tribunals, the local Inspector might have been too embarrassed to take the case to the General Commissioners as he/she would have to be going back month after month in front of the same Commissioners, who generally had a sense of fair play.I completely understand the emotionally charged response which is the curse of email (too easy to do compared to a letter). Who has not experienced that sort of frustration? It is a sharp reminder that you should write the response you would like to send to get it off your chest and park it. Then send the response you need to send.
Good policy - sometimes re-reading it, the tone of one's missive can come across as too aggressive as opposed to the sardonic intent.
Especially when channelling one's Inner Yorkshireman; say what ah lihke and lihke what ah bllody well say!
I totally understand the legalities. The point I was making is that all too often (we had it here recently with fines over non compliance with AML) compliance takes centre stage of substance. In this case it wouldn't have been too difficult for the FTT to have listened to why HMRC disregarded the agents points. After all isn't that what these tribunals are there for? I know there has to be time limits but 60 days, come on.
HRMC don't appear to believe in the concept of 'Equality of arms'.
Why can our professional bodies/the Government not issue guidance that HMRC must respond to agent's correspondence within 30 days, otherwise the contents of our letters are now deemed to be true version of events. That might level up the playing field!
I fully sympathise with the accountant trying to get any sense out of HMRC or even responding to points raised with them. Imagine telling the judge at the FTT that you are sorry for not turning up in court on the correct date, but due to Covid/Working from home you aim to turn up in 12 months or more, which is what we have to contend with from HMRC on a daily basis.
I would agree with the decision. There has to be strict statutory rules on time limits otherwise where are the boundaries? Sympathy with the taxpayer, but rules is rules, and this could so easily have been a different outcome if the agent had stuck to them
At the risk of ranting on about the deficiencies of HMRC this appears to be an example of administration failure by the agent and HMRC deciding to play it straight when they could have been more accommodating.
Makes a change doesn't it. There can't be a tax practitioner in the country who doesn't experience the reverse situation on a daily basis. administrative failure - unanswered correspondence, hours on the phone, being passed from department to department before being cut off. Inadequately trained staff and yet more fines and penalties for the 'delinquent'. You might have thought that HMRC would be more understanding of administrative error given their own lamentable performance.
I was told by one of the partners at the firm where I first worked : "If in doubt, appeal within the time limit and argue the case later". I took that advice to heart!
I do have some sympathy with the accountants. They appealed and apparently raised points that needed a response. HMRC did what they are very good at by ignoring points made which merited a response. Instead they simply gave an ultimatum as to how they were going to proceed. I can quite understand the accountants response which could easily be interpreted as meaning that, in the absence of HMRC replying to the points raised by them,then the original appeal must still stand as there had been no attempt by HMRC to deal with the appeal properly - although it is a shame they did not say as much. Surely in such circumstances HMRC should also have been taken to task by the FTT for the high handed way they did with this without any attempt to answering queries raised.
Courts often look at the intention in cases - what was meant by the Government when the legislation was put in place. It was pretty obvious from the response that the Agent was unhappy and (by extension) the client. It is equally obvious (by implication) that an appeal would absolutely be what was wanted.
The outcome is a disgrace! It's time we stopped all this games playing!