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Where Taxpayers and Advisers Meet

Dispute whether Notice of Enquiry validly issued

hombre contento
Posts: 13
Joined: Tue Oct 03, 2017 10:22 pm

Dispute whether Notice of Enquiry validly issued

Postby hombre contento » Tue Oct 31, 2017 10:31 pm

I have been corresponding with HMRC about some aspects of my 2014/15 tax return, for which the deadline for issuing an Enquiry passed on 31 Jan 2017. Without having mentioned this in my previous correspondence, HMRC have now written to me stating that "a S9A Enquiry notice was issued on 11 Jan 2017" but I definitely did not receive this letter. I have not moved house recently and have not had any trouble with any other HMRC letters. The letter I did receive on 2nd March refers to writing to me "and my agent" on 11th January 2017 in order to "ask for some information." So, I have a number of questions arising from all of this, for which any guidance welcome:
1) I understand HMRC don't have to prove receipt, so what level of proof do they have to show that it was actually sent? Can I ask them to prove it was actually posted? Does a Notice of Enquiry need to be sent by registered post? It seems odd to me that in their letter of 2nd March they didn't just attach the 11th Jan letter and I still haven't seen it. I presume I should therefore at the very least ask to see a copy of the letter of 11th January.
2) can the issue be resolved by reference to the advisor referred to? I have asked them twice to name the advisor they sent it to but they have not done so. I think it was KPMG as they used to act for me some time ago. I presume if KPMG received a notice of Enquiry about someone that was not a current client, they would not just throw it away, but probably would return it to HMRC. Can I ask them to prove that the advisor received the letter, even if I didn't?
3) the 2nd March letter refers to the 11th Jan letter "asking for some information". That certainly doesn't sound like a notice of Enquiry to me. Surely, if it was, they would have stated that clearly in the 2nd March letter and would have described it differently. I presume seeing a copy of the 11th Jan letter will resolve this issue.
4) In a subsequent letter, they stated there is NOT an open Enquiry and they don't intend to open an Enquiry. Am i entitled to rely on that statement if they are now contradicting themselves by saying that actually a Notice of Enquiry was issued before the deadline?
Welcome any guidance on these questions. Many thanks for your time and consideration.

bd6759
Posts: 3072
Joined: Sat Feb 01, 2014 3:26 pm

Re: Dispute whether Notice of Enquiry validly issued

Postby bd6759 » Tue Oct 31, 2017 11:15 pm

1.Any notice sent by post is treated as delieved unless the contrary can be proved. The 2 March letter refers to their letter of 11 January. Most would have asked for a copy at that time. You really ought to ask for a copy.

2. The notice was addressed to you. Whether the advisor recieved a copy is irrelevant.

3. I don't see why asking for information means that it cannnot be an enquiry. To enquire means to ask.

4. A contradictory statement cannot change a fact. If as a fact they opened an enquiry, any statement to the contrary cannot change that. Although I would be inclined to ask them to clarify that statement.

hombre contento
Posts: 13
Joined: Tue Oct 03, 2017 10:22 pm

Re: Dispute whether Notice of Enquiry validly issued

Postby hombre contento » Tue Oct 31, 2017 11:40 pm

Thanks for the post.
On 1) below, I agree that any notice sent by post is treated as delivered, but what is the burden of proof on HMRC to show it was actually "sent by post"? do they need to show it was posted, or send it registered post or somehow prove it did actually leave the building? On the other side, how can I prove the contrary since i cannot prove i didn't receive something?
many thanks.

bd6759
Posts: 3072
Joined: Sat Feb 01, 2014 3:26 pm

Re: Dispute whether Notice of Enquiry validly issued

Postby bd6759 » Tue Oct 31, 2017 11:54 pm

On the other side, how can I prove the contrary since i cannot prove i didn't receive something?
You would have to show that it was incorrectly addressed, or some other cause that would prevent or hinder delivery in the normal course of post. Otherwise, it will be deemed delivered after 5 working days.

You could ask if the letter was printed and posted using their central print sevice. If so, there should be a log file (I would imagine).

hombre contento
Posts: 13
Joined: Tue Oct 03, 2017 10:22 pm

Re: Dispute whether Notice of Enquiry validly issued

Postby hombre contento » Sat Nov 18, 2017 7:12 pm

Hello,
I have now seen a copy of the letter of 11 Jan, which does look like an initial enquiry letter. As per your note, I asked for a copy of the log file showing it was POSTED. I got a printout showing a document was CREATED in January but they said it was not sent using the central postal system so there is no record of that. I have asked around about the issue of something being deemed as delivered and I understand that is a "rebuttable assumption", which i'm told means it can be challenged. The problem is how to prove a negative. I have had no difficulty receiving any other letters from HMRC, have not moved or anything and don't have any issues with any other post, so I'm quite willing to provide an affadavit that I didn't receive the letter, but would that be enough? I'm not sure how else I can prove i didn't receive it. Welcome any thoughts.

bd6759
Posts: 3072
Joined: Sat Feb 01, 2014 3:26 pm

Re: Dispute whether Notice of Enquiry validly issued

Postby bd6759 » Tue Nov 21, 2017 7:11 pm

It is very difficult to prove you didn't receive it. The interpretation act says that you received it 5 days after it was posted, unless you can prove otherwise. You would need to be aware of some event that would have prevented the letter from being delivered.

maths
Posts: 7535
Joined: Wed Aug 06, 2008 3:25 pm

Re: Dispute whether Notice of Enquiry validly issued

Postby maths » Wed Nov 22, 2017 12:18 am

Interpretation Act 1978, s 7 applies where:

“an Act authorises or requires any document to be served by post (whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document.”

Maybe worth reading: Heronslea Limited v HMRC [2011] UKFTT 102 (TC)

wamstax
Posts: 1863
Joined: Wed Aug 06, 2008 3:39 pm
Location: Operate Nationally but based in Aberdeen
Contact:

Re: Dispute whether Notice of Enquiry validly issued

Postby wamstax » Sat Dec 02, 2017 2:09 am

This is wholly a question of fact and ultimately
(A) failing to convince the HMRC Investigator (or his manager if you ask for the matter to be referred to him) that you did not receive the notice, or
(B) asking for the matter to be independently reviewed
You would ultimately have to take the matter before the FTTribunal and seek to convince them that no valid notice was issued.

However before getting to that stage you would be entitled to see their evidence that the notice was prepared and then issued. Of course the alleged issue of the notice to an adviser would be a convincing (on balance of probabilities) factor either way. It would be a strong argument for example if the alleged recipient of the copy notice to the agent was never received. Although this would not of course be all conclusive it could be possible for you to muster your arguments that not only did they say they issued a notice to an agent that was no longer acting for you (their first error -assuming they had been notified they were no longer acting) that agent ( once you get the name and check with that firm) has said that they did not receive their alleged copy (assuming you can get them to say it) you advance that HMRC never in fact issued any such notice so there was no way you could have received it. In this way the tables might be turned. It is not crucial to HMRC to show the agent got their copy (as it is your receipt - or non receipt - that is the decisive issue.

Basically of course HMRC will say it is for you to prove you did not receive the notice BUT as a tax case somwhere said it is impossible and ridiculous for HMRC to ask you to provide evidence of the negative - the non-receipt. The whole matter has to be decided on the facts of the case. You will know whether you got the notice and if you didn’t then the onus is on you to show why you didn’t. For example (I) the alleged creation and issue is a fabrication of the HMRC OFFICER - can I say that this is unlikely but I know of one case where this certainly could have been be argued strongly - but needs to get all the alleged paperwork obtained and examined. Maybe the officer missed the deadline and just tried to push forward relentlessly.
(I) it was created but never issued- can HMRC detail the creation and ACTUAL posting of the alleged correspondence from each officer involved from creation to posting.
If you are going to beat them then you need to do your forensic examination work (including getting copies of everything by for example a Data Protection Act request
Not an easy one and could be expensive to resolve. However the expense might be small in comparison to the likely outcome of any enquiry. Only you might have some measure of that,.....
regards and hope this helps
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Operates Nationally with competitive costs
and email and phone contact can be obtained from website

hombre contento
Posts: 13
Joined: Tue Oct 03, 2017 10:22 pm

Re: Dispute whether Notice of Enquiry validly issued

Postby hombre contento » Tue Jan 02, 2018 5:02 pm

Thanks to all of you for your replies. I wrote to HMRC and asked that they show evidence of actually POSTING the letter,. I was sent in reply evidence that showed a letter was created but it didn't actually show evidence of it being posted. As the quote from s7 by "maths" below states, the letter needs to be correctly addressed, pre-paid and posted. So, i went back again and asked for evidence that it was posted and got the following reply. Basically, they say there is "no proof of posting as individual letters issued by post are not recorded" and then go on to say that it was prepared and passed to the local posting office in the normal way and that, in the absence of it being returned to them as undelivered, they are entitled to assume it was validly delivered.
My first reaction is that it seems quite wrong that they don't record either the posting or delivery of letters which have a statutory deadline attached to them. Given they are required to send out enquiry notices before a deadline, I would have assumed that this would carry with it the requirement to record that they met their own deadline. Makes no sense to me otherwise, but I guess those are the rules. Is that correct?
Secondly, I am wondering what to do now. They are offering a right to a third party officer HMRC review and/or appeal to the tribunal. I am 100% certain that I never received the letter and I do have my suspicions that the letter was created but never sent as the officer was a bit equivocal when I spoke to him about it. So i'm minded to ask for a review by a non-involved HMRC officer as it seems a no lose option (I retain the right to appeal later) and I can ask that officer to specifically check whether it was validly posted. Welcome any other views on the matter.
Best regards

wamstax
Posts: 1863
Joined: Wed Aug 06, 2008 3:39 pm
Location: Operate Nationally but based in Aberdeen
Contact:

Re: Dispute whether Notice of Enquiry validly issued

Postby wamstax » Fri Jan 05, 2018 6:09 pm

They do in fact record the issue of Enquiry Notices where they take up an investigation under the COP9 procedures (Cases where Fraud is suspected but they are offering the individual the opportunity to settle civilly by means of a voluntary disclosure and paying the tax interest or penalties. Of course that is because they want to be able to show the date it was received by the individual as that person then only has a period of 60 days in which to accept the offer or reject it. In the latter event the HMRC will then decide whether to investigate criminally.

So you see it is not quite true what they say that enquiry letters are not issued by recorded delivery. COP9 letters need to be signed for and frankly I see no reason why HMRC should not be faced with proving that they issued the enquiry notice in exactly the same manner that they have the evidence for COP9 cases. Perhaps they were covering up the fact that the officer missed the deadline for issuing the letter (even tho they might have prepared it) and it is of course entirely possible that they have said they issued the letter but in fact never did.

What happened with the Agent's/Adviser's copy? Did you follow that up as if it was received by the "no longer acting" Agent at the correct time I could see a Tribunal (your next recourse afterwards if the Independent Review is unsuccesful) possibly coming down in favour of HMRC and it might well be that HMRC would contact that person - even if it was issued in error - to see if they received their copy to bolster up their case that the notice was issued and not returned by the DLO of the Post Office..
regards and hope this helps
http://www.wamstaxltd.com
Operates Nationally with competitive costs
and email and phone contact can be obtained from website


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