TMA70/S46 (2) provides that determinations by Commissioners in
any proceedings shall be final and conclusive. The appeal cannot be
re-opened by either party unless the Commissioners decide to
exercise their power to review a previous determination (Regulation
19 of SI1994/1812). This remains true even if a case on the point
in dispute is decided in connection with some other assessment. A
payment of tax `under protest' does not in any way keep the case
open. A determination may, of course, also be altered later by the
Courts if, following the Commissioners' decision, an
Appellant’s Notice is lodged (see AH1860) within the
prescribed time limit.
This finality applies only to the particular point before the
Commissioners. Per TMA70/S46 (2) the Commissioners’
determination is final and conclusive `Save as otherwise provided
in the Taxes Acts...'. Not only can a decision of Commissioners be
varied by the Courts (TMA70/S56A (4)) but other provisions may
allow the amendment of an assessment etc which has been determined
on appeal, e.g. the various loss relief provisions (see below).
As to a claim for error or mistake relief under TMA70/S33 in
respect of an assessment etc, an application for relief should not
be regarded as precluded merely by reason of the fact that the
amount of the assessment has been fixed on appeal, but relief will
not be available where the substantive point of an error or mistake
claim was squarely in issue before the Commissioners when the
appeal was determined. In the circumstances the Commissioner's
determination of the point is final and conclusive (TMA70/S46 (2)).
Similarly, relief will not be available where the substantive
point was squarely in issue in the process of reaching agreement
and determining the appeal under TMA70/S54. Again the determination
of the point is final and conclusive, TMA70/S54 (1) directs that
the like consequences shall ensue as if the Commissioners had
determined the appeal.(see Eagerpath Ltd v Edwards TL3623)
In addition the assessment for the year (even if later proved
to be excessive) is not excessive by reason of some error or
mistake in a taxpayer's return but by reason of the taxpayer's
failure to pursue his arguments on the point squarely in issue
through the normal appeal channels.
Finality under TMA70/S46 (2) does not necessarily preclude the making of a loss claim for the year concerned. If the question of the availability of a loss did not form part of the original appeal there is no reason why a loss relief claim cannot be made and given effect to, subject to the time limit and other conditions of the particular relieving section and even though the amount of assessable profits may have been determined by the Commissioners. For example, following the confirmation of an HMRC determination by the Commissioners the taxpayer and HMRC may agree a loss for the same period to be set against his income including the income in the confirmed assessment. Alternatively a claim may be made to have the loss carried forward.
