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Procedural history before the Tribunal
Procedural history before the Tribunal
On 27 October 2023, the Appellant filed an in-time appeal with the Tribunal.
Late on 25 January 2024, HMRC filed their Statement of Case. In this Statement of Case, HMRC asserted that the burden was on the Appellant to demonstrate that HMRC incorrectly issued the assessment. HMRC referred to Section 73(6) and 77(1) of VATA 1994 which set out the assessing time limits, and relied upon Babber t/a Ram Parkash Sunderdass v CCE [1991] BVC 789 as supporting their argument that the assessment had been made on 27 June 2023, even though it was not notified until 22 July 2023.
On 19 February 2024, the Appellant’s agent emailed HMRC making the point that Babber supported the argument that an assessment was made when it was checked and counter-signed, and asking HMRC to reconsider their position. On 29 February 2024, HMRC responded to the Appellant’s agent:
Having made several internal enquiries, I can confirm that HMRC’s position remains unchanged. I have been advised that HMRC intend to rely firmly on the date the assessment was made, not notified.
HMRC consider the counter signatory element to be irrelevant as the assessment was made first. Additionally, counter signing is considered to be an internal process.
On 8 March 2024, the Appellant filed both its List of Documents and detailed submissions in support of its case. In a covering email the Appellant noted that there was only one point in issue, and it requested that it be considered on the basis of paper submissions to save costs.
On 29 May 2024, HMRC were asked if they objected to a decision on the papers. If they did not object, HMRC were further directed to provide a bundle that included legislation and case-law referred to by either party.
In response, on 14 June 2024, HMRC filed an application to strike out this appeal. In this application, HMRC asserted:
The Appellant made it clear that they wish to appeal on the basis of whether the assessments were “made” in time according to HMRC’s internal processes quoting internal guidance and policy.
As HMRC’s internal processes are not set out in law, the Respondents contend that there is no right of appeal to internal procedures …
On 29 August 2024, Judge Brown KC noted that HMRC had not replied to the question of whether they objected to a paper hearing. The Appellant was directed to respond to HMRC’s strikeout application, and HMRC were directed then to make submissions on the Appellant’s response and the suitability of a determination on the papers.
On 9 September 2024, the Appellant filed brief submissions, indicating it considered that the Tribunal did have jurisdiction, and that it had a reasonable chance of success, so the appeal should not be struck out. These submissions were not copied to HMRC.
Judge Redston issued further Directions on 29 October 2024, requiring HMRC to respond to the Appellant’s further submissions. Judge Redston also directed that, if HMRC withdrew their strike out application, the appeal would be heard on the papers. If HMRC did not withdraw their application, that application would be heard on the papers, and if HMRC were not successful in that application then the judge would go on to decide the appeal.
On 11 November 2024, HMRC confirmed they wished to continue with their application to strike out this appeal.
On 8 January 2025, HMRC filed a bundle of authorities. Despite the original direction that HMRC should file one bundle, that included legislation and case-law, no documents were included in the authorities bundle, and no separate documents bundle was filed. After chasing by the Tribunal, HMRC filed a bundle of documents with the Tribunal on 21 January 2025.