AH0251 - Late Appeals and Postponement Applications: Late appeals

TMA70/S49(1) authorises an Officer of Revenue & Customs to allow an application for the admission of a late appeal or application to postpone payment if he is satisfied that

• there was a reasonable `excuse' for the lateness of the appeal or postponement application
• the application has been made `without unreasonable delay' after the expiration of the time limit.

If he is not so satisfied, the application is to be listed for determination by the Commissioners, or in the case of Tax Credits the Appeals Tribunal. In such a case, an Officer of Revenue & Customs may explain to the applicant the grounds on which he will oppose admission of the late appeal.

All late appeals should be referred to a senior officer unless they fall within office guidelines for the acceptance of a late appeal, e.g. an appeal is received not more than a specified number of days after expiry of the time limit. In particular an Admin Assistant should not be asked to decide upon a taxpayer’s claim that there was a reasonable excuse for the delay in making the appeal.

In strictness, an application under Section 49(1) to make a late appeal is to be distinguished from a late notice of appeal (see Regina v. Special Commissioners ex parte Magill, 53TC135). In practice, however, any late notice of appeal should be regarded as triggering the provisions of Section 49. The matter should be resolved either by accepting the late appeal (and, if appropriate, inviting a late postponement application) or by requesting a formal Section 49(1) application which can be referred to the Commissioners.

The Commissioners’ decision on an application under TMA70/S49 is final. They cannot be required to state a case on a point of law under TMA70/S56(2).

Subject to his knowledge of the Commissioners' views on the admission of late appeals or postponement applications, an Officer of Revenue & Customs should be guided by the following considerations in applying Section 49(1):-

1. `Reasonable excuse' is to be regarded as having the same meaning as `absence, sickness or other reasonable cause`. Moreover, it may cover not only the absence or sickness of the appellant himself but also that of his agent. However, the reasonable excuse has to be personal to the appellant: so a late appeal should not be agreed where for instance a new decision of the Courts, unconnected to the instant case, has made an appeal more viable. In that case the remedy, if there is one, is by reason of an error or mistake claim, TMA70 Section 33.
2. The amount involved is not a material consideration. Where however it appears that

the Inspector should consider whether it might not be better to accept the appeal rather than refer it to the Commissioners.

Payment of tax followed by a late notice of appeal months or years afterwards does not, in the absence of some exceptional factor, satisfy the words `thereafter without reasonable delay'. Payment of tax under protest does not constitute notice of appeal and, where necessary, the taxpayer should be so informed.

Except where a stricter practice is enjoined by the Commissioners, verbal or other informal notices of appeal or postponement application may be accepted in unimportant cases, i.e. cases where the amount at stake is insignificant and no point of principle arises.