TC09600 - [2025] UKFTT 00919 (TC)

On 9 July 2020, Mrs McGuire sent Mr Milhill copies of the 2014-15 closure notice and the 2015-16 assessment.

Mr Milhill said that he “couldn’t remember” whether he received that letter and the attachments. For the same reasons as set out above, we find that he failed to prove that this letter had not been served on him, and we also find as a fact on the balance of probabilities that it was received by him and subsequently passed to Ms Griffiths.

However, as the original of the 2014-15 closure notice and the 2015-16 assessment had been sent to Ms Griffiths’ address, we considered whether sending Mr Milhill copies of the decisions was sufficient to meet the notification requirements in the legislation.

The relevant authority here is Marano v HMRC [2023] UKUT 113 (TCC). Mr Marano’s accountant had received a copy of a penalty assessment, and the issue in dispute was whether this was sufficient to constitute notification to Mr Marano. The UT carried out a detailed examination of the case law, and summarised the relevant principles at [63]:

“(i)

The starting point, as with any statutory provision, is a consideration of the terms, context and purpose of the relevant provision: HMRC v Raftopoulou [2018] EWCA Civ 818 per David Richards LJ at [33].

(ii)

Some provisions are likely to have different interpretations to others; there
is no one standard interpretation that will fit all notification provisions.

(iii)

There may be situations where a provision requires a particular or special
formality for the giving of notice: per Lady Smith in R (Spring Salmon and
Seafood Ltd) v IRC [2004] STC 444 at [32] and per David Richards LJ in
Raftopoulou at [36].

(iv)

There is also a category of cases where the purpose of service of a notice
can be recognised as being simply to see to it that the recipient is informed.

(v)

As long as the statutory purpose has been achieved, a failure to follow the
literal wording of the provision does not invalidate a notice: Hastie &
Jenkerson v McMahon [1990] 1 WLR 1575 and Ralux N.v./S.a. v Spencer
Mason (The Times 18 May 1989).

(vi)

When considering whether the statutory purpose has been achieved it is
necessary to look at the question from the perspective of the taxpayer, HMRC’s intentions in giving the notice are not relevant: see R (Sword
Services Ltd) v HMRC [2016] EWHC 1473 and Flaxmode Ltd v HMRC [2008] STC (SCD) 666.

(vii)The reality of a situation should be taken into account and, in cases where
notification requires no particular formality, evidence of actual notice having been received or of a taxpayer being made clearly aware of the subject matter
of the notification directly or indirectly, may be sufficient for notice of it to
have been given, even if the notice has not been given directly to the taxpayer
(Sword Services).”

The UT went on to decide that, in the context of the Sch 55 penalty in question:

“Taking this approach, and considering Sched 55 para 18, its purpose is to ensure that once HMRC makes a penalty assessment, the taxpayer is made aware of two facts: first, that they have been so assessed and second, the period to which that assessment relates. This then enables the taxpayer to consider their position and determine how to react, including whether to appeal. There is nothing in the wording of Sched 55 para 18 or its context to indicate that any special formality is required in order for a penalty notice to be valid, provided that the notification conveys the required information.”

We are in no doubt that the same applies to (a) the closure notices/amendments and (b) the discovery assessment, both of which were attached to Mrs McGuire’s letter of 9 July 2020. The statutory purpose of the former is to inform the taxpayer that the enquiry has come to an end, and about any amendments made by HMRC to the return which has been the subject of that enquiry. The purpose of issuing a discovery assessment is to inform the taxpayer of the tax assessed.

As explained below, we also find that Mr Milhill was in any event notified of the decisions sent to Ms Griffiths (including the 2014-15 closure notice and the discovery assessment) because she received them as his agent.