A brief guide to the process of getting a case heard before a tax tribunal, by Andrew Needham of VAT Specialists Limited.
Appealing to the Tax Chamber
If you receive an assessment or ruling and following an internal review HMRC maintains that it is correct the next step is to appeal to the Tax Chamber of the Tribunal Service. In the first instance the appeal is to the First-tier Tribunal with the right of a further appeal to the Upper Tribunal. An appeal to the Upper Tribunal has to be on a point of law and with permission from the First-tier Tribunal. In complex cases it is possible to be heard by the Upper Tribunal in the first instance. A trader can represent him- or herself or engage a professional accountant, tax consultant or solicitor. Even if you are successful in the appeal you are unlikely to have your costs paid, so it will be necessary to decide if the appeal is commercially viable.
Statement of Case
To enter an appeal you need to complete a form TS-TaxAp1. The Tribunal Service will acknowledge an appeal and forward a copy to HMRC, which then has 30 days within which to submit a Statement of Case in response, which justifies the original assessment or decision. HMRC hardly ever meets this time limit because of its workload. Usually, they will submit several requests for an extension of time. Normally a Tribunal appeal will take about 12 months to be heard.
Certain procedures have to be followed when making an appeal and it is essential that you prepare well before the hearing. In some circumstances a ‘skeleton argument’ (written summary of your case) will need to be prepared along with a list of documents, witness statements and an agreed ‘bundle’ of documents.
When HMRC submits the Statement of Case, the Tribunal Service will forward it to you. A little later, they will ask for dates over the next few months during which you are not available, which of various possible locations would be preferable for the hearing, how many days the case is likely to take, and how many witnesses will be called.
Preparation is Key
A case is often won on the basis of carefully prepared evidence. Good preparation requires careful assessment well in advance of:
- facts upon which the case depends;
- evidence of those facts;
- relevant documentation, such as copies of contracts;
- possible witnesses.
The Hearing Itself
A Tribunal hearing is relatively informal, but evidence is given on oath:
- normally the appellant must present its case against the assessment or decision, and call witnesses;
- HMRC then replies and calls their witnesses;
- the appellant has a right of reply.
In dishonesty cases, HMRC starts first because they have to prove that there has been dishonesty.
Once the tribunal has heard both sides to the case, then for basic hearings a decision may be reached immediately but for more complex cases it is more common for a written decision to be issued within the next 28 days – this is usually subject to appeal, if either party is unhappy with the finding.
Further information can be found at: