TC09656 - [2025] UKFTT 01207 (TC)

This letter was written and photocopied, as is apparent from the existence of the photocopy of the letter, but the photocopy of the letter does not prove when the letter was written. It is apparent from its terms that the letter requests an appeal and review. Mr Luo’s evidence was that he wrote the letter in the UK on 9 November 2023 and posted it using a first class stamp.

The First Agent informed HMRC in an email of 8 November 2023 that Mr Luo was in China. Mr Luo denied that he was in China at that time. Mr Luo however refused requests by HMRC to provide a copy of his passport which would have shown stamps of entry and exit from China or the UK. There was no other evidence before us to show that Mr Luo was in the UK at the material time.

HMRC has no record of having received the letter, and this appears from the contents of HMRC’s contemporaneous correspondence. There was no chasing up on the progress of the review or appeal of HMRC either by Mr Luo or the First Agent. Mr Luo suggested that he did not think that the First Agent could contact HMRC about that letter because it was written from his personal address, and he did not chase up because the fact that there were delays was not a surprise given the timescales involved in HMRC’s enquiries. We accept that the enquiry into the VAT return had taken a considerable period of time, but we do not accept that the letter was written and sent in the UK to HMRC for the detailed reasons given in paragraph 43 below.

When Mr Feng, as LL Ltd’s second agent, first contacted HMRC in October 2024 he made no reference to the letter dated 9 November 2023 and the request for a review or appeal that had been made in it. Mr Feng subsequently said that his client had informed him that the First Agent had requested a statutory review but that request had not been received by HMRC and that this was the reason for the delay. At no point prior to submitting the appeal to the Tribunal on 14 October 2024, did Mr Feng state that Mr Luo himself had written to HMRC requesting a review or provide HMRC with the photocopy of the letter dated 9 November 2023.

We find that Mr Luo did not write the letter dated 9 November 2023 in the UK on 9 November 2023 and send it to HMRC by first class post on either 9 or 10 November 2023. This is because although it is not surprising that there was no photocopy of the envelope being sent to HMRC (it was reasonably said on behalf of LL Ltd that no-one would photocopy an envelope), we do not accept Mr Luo’s evidence that he was in the UK and not in China around the relevant time, even after making all proper allowances for the difficulties that Mr Luo had in giving evidence through an interpreter. The First Agent stated contemporaneously in the email dated 8 November 2023, that Mr Luo was in China, and this was one of the reasons given by the First Agent for the need for an extension of time. Mr Luo was aware of HMRC’s requests to see his passport to show whether he was in China, but Mr Luo did not provide the passport, and he did not give any reasonable explanation for the failure to provide it, for example explaining that he did not receive a stamp in his passport, or that he was in China on 8 November 2023, but had returned on 9 November 2023. We find that Mr Luo was in China at the relevant time and was therefore not able to write and send the letter by first class post to HMRC as he said. There are other facts supporting our finding. These include the failure by Mr Luo to chase a response to his letter dated 9 November 2023, which would have been expected if it had been sent. They also include the failure by Mr Feng to make immediate reference to the letter dated 9 November 2023 when communicating with HMRC about a review or appeal. If Mr Luo had written and sent a letter to HMRC on 9 November 2023 asking for a review or appeal, he would have mentioned it to Mr Feng to justify the request for the appeal or review.

For all the reasons set out above we find that it is more likely than not that Mr Luo did not write and send the letter dated 9 November 2023 to Officer Kershaw by first class post in the UK on 9 or 10 November 2023. We also find that further to the First Agent requesting and being granted an extension of time for LL Ltd to submit its request for a review, no actual request for a review or appeal was made to HMRC by the First Agent or by Mr Luo on behalf of LL Ltd before Mr Feng wrote to HMRC requesting a late appeal on 3 October 2024.