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Andrew Needham, Director of VAT Solutions (UK) Ltd, offers some tips arising from a VAT Tribunal case concerning an ambiguous letter from HMRC.   

{mosimage}Introduction

In a recent VAT Tribunal case, we lodged an appeal on behalf of our client, PTE Plc t/a ‘Physique’ (MAN/08/0265 – VTD 20,722), against the imposition of a default surcharge of nearly £20k for the submission of a late return for the period 11/07.  We were successful in the appeal, and the penalty was removed on the grounds that the company had a ‘reasonable excuse’ for sending in the return late.

Background

The background to the case was that in early 2007, PTE had a number of staff changes in its accounts department and reorganised its business. By early October, it became apparent that it would not be able to complete its 11/07 VAT return by the due date.  The company sent a fax to HMRC on 11 October 2007 explaining the situation, and stressing that it wanted its current return period changed to a December end, and that all future returns would end December, March etc as it was not able to complete the return on time due to the pressure of work.

On 2 November, HMRC replied saying ‘This has now been approved and your VAT returns will now end on the last days of…’.  Not unreasonably, the client considered this to be agreement to the change, particularly as it had made it clear that it needed the change in the current period in order to get the return in on time.  The company did not take much notice of the rest of the letter, which said: ‘Before this change becomes effective you may receive a VAT return under the old arrangements.  If this happens you must complete the return and send it to …’.

Doing this, of course, would have completely negated any benefit from changing the VAT return stagger.

The client received the 11/07 return as usual, and a one-month return for December 2007. It naturally threw away the November return, and assumed that the December return was for 4 months.  It filled it in, and sent it on time for what it thought was a four-month period.  HMRC replied ‘oh no, we want two returns and the November one was late so we will impose a penalty for a late return’.

Decision

Similarly ambiguous wording was responsible for two Tribunal appeals in 1995 and 2001, which HMRC also lost.  The Tribunal Chairman expressed concern that, despite this, HMRC had still not changed the wording of these letters, and the meaning was still unclear.

Quoting, the Chairman said:

‘We do not see why it should be the duty of a taxpayer to make inquiries as to the meaning of a letter which the Commissioners have written, just in case there should be some hidden ambiguity in it.  The Commissioners should be taken to mean what they say; it is, in our judgment, up to them to say what they mean’

Not surprisingly, in this case, the client’s appeal was successful. 

Tip

There are two main points to take from this case.  Firstly, if you do ask for a change of VAT stagger, you should always complete any outstanding returns, even if the authorisation letter seems to make it clear that the change is current rather than from a date in the future.  Secondly, if HMRC continues to produce ambiguous letters with unclear meaning, you may have a reasonable excuse for your mistake and avoid a penalty.

It must be hoped that HMRC will now take the Tribunal’s advice on board and change the wording of these letters, so that their meaning is clear and these misunderstandings do not happen again in the future.