TC09622 - [2025] UKFTT 01232 (TC)

We do not consider that Mr Ahya has established a good reason for the delay amongst the reasons given. There was no separate reason given for the delay in appealing against the penalties.

The various explanations given in the hearing were not wholly consistent or supported by evidence and one explanation in particular is unsatisfactory. We consider that the submissions that it was believed that information from varying sources was required before an appeal could be made are not consistent with the submission (which is supported by the letter of 8 March 2024) that Mr Ahya did not realise that he had to appeal the assessments.

Overall, we consider that the most reliable explanation for the delay is that in Mr Ahya’s letter of 8 March 2024: that he mistakenly believed he had to file his tax returns for the years in dispute before appealing the penalties and did not realise that he had to appeal the notices.

The letter refers, at opening, to “you [sic] letter dated 15/01/2024 requesting submission of my 2004-05 to 2023-24 tax returns”. HMRC’s letters of 15 January 2024 do not request submission of any tax returns. There was no explanation as to how Mr Ahya had arrived at this belief. The notices are clear as to what is required. Whilst a mistaken belief alone, in the context of a short delay, might lean towards it being appropriate to grant permission for a late appeal particularly where an appellant is unrepresented, we do not consider that there were good grounds for any such belief and there were several other attempts at explaining the delay which we also have to take into consideration.

It was not explained why the identity theft which apparently resulted in a fraudulent loan being obtained by a third party meant that Mr Ahya could not access his online account with HMRC; there was no evidence that any such identity theft had resulted in anything other than one loan being taken out. His witness statement makes no reference to this identity theft nor to any attempts to access his online account.

The contention that it was believed that detailed information of Mr Ahya’s employment income was needed to respond to the notices is also, we consider, not a good reason for the delay. The notices are clear that what is required is to write to HMRC to dispute the assessment; there is no requirement to provide detailed figures in rebuttal with the appeal. We note that the contention that Mr Ahya was eventually able to access information in his online account and prepare the return figures is at odds with Mr Ahya’s witness statement, which states that he established the figures from his old records which.

Although Mr Ahya’s representative contended that HMRC manual ARTG2170 states that appeals require grounds that are not vague, such that the delay was inevitable as any appeal within the time limit would have been rejected as too vague, this contention overlooks the fact that ARTG2170 states that before rejecting an appeal on the basis that the grounds are too vague, the decision maker should consider ARTG2171. That page makes it clear that the decision maker is required to contact the taxpayer in order to try to obtain more details of the grounds of appeal, and not simply reject it. There was also no contention or evidence that these pages were seen or considered by Mr Ahya: as noted above, we consider that Mr Ahya did not realise that he had to appeal the assessments as well as the penalties. Accordingly, this is not an explanation for the delay.

The submission that it was “not appreciated that appeals should be lodged within the 30 day time limit even though full details of income and expenses were not available until after that date” is not, we consider, supported. In the circumstances, we have treated this as a submission that it was not appreciated that a response was required within 30 days, given that we consider that Mr Ahya did not realise that he had to appeal the assessments at all.

The notices sent to Mr Ahya include clear information as to the deadline for an appeal and what needs to be done to appeal. It was suggested in the hearing that this could be overlooked in a lengthy letter setting out significant potential liabilities. This was a suggestion, not a contention. However, the letter clearly states the deadline under a bold heading stating ‘what to do if you disagree’. The wording is not complex and we consider that it would not be overlooked by a person seeking to respond to the notices. Further, given the history of this case, we consider that Mr Ahya knew that deadlines are set for responses to HMRC, having previously been granted multiple extensions of time to provide information (which was not subsequently provided) during the enquiry process.

Mr Anya’s contention (on 31 August 2024, repeated in the Notice of Appeal) that he had had to wait for information from a Subject Access Request before appealing is not a good reason for the delay.

Firstly, Mr Ahya has not provided any evidence that such a Request was made before the late appeal was made on 8 March 2024. The only evidence of a Request was that dated 9 September 2024 provided from HMRC’s records, which was acknowledged on 1 October 2024. HMRC were unable to find any earlier Subject Access Request.

There is no reference to a Subject Access Request, or waiting for a response to it, in Mr Ahya’s letter to HMRC of 8 March 2024; if Mr Ahya was awaiting such a response in order to respond we consider that it would have been referred to in this letter.

The Request is first referred to in Mr Ahya’s letter to HMRC of 31 August 2024, which also states that “The Subject Access Request documents came in March 2024 after several attempts. Without this information how could we draft the return?” This is, as noted, inconsistent with Mr Ahya’s witness statement which states that the information was obtained from his old records and not from a response to a Subject Access Request.

A Subject Access Request was subsequently made to HMRC on 6 September 2024, although no evidence was available as to why this was made at that date.

Despite the clear assertion in the letter of 31 August 2024 and the Notice of Appeal that the contents of the response to this Request were relied upon to make the appeal, and that contention in the letter and Notice of Appeal that the delay in making the appeal was due to HMRC’s delay in providing such a response, we were advised in the hearing that no such response had been received. Mr Ahya’s representative stated that the reference to the response had been included in the Notice of Appeal due to a miscommunication, but it was also clearly referred in Mr Ahya’s letter to HMRC of 31 August 2024.

Considering the evidence before us, we conclude on the balance of probabilities that the Subject Access Request was not made until after Mr Ahya referred to it at the end of August 2024 as a reason for a delay some months earlier, and that he has not advised his representative of this. This is clearly unsatisfactory.