AH3955 - Appeals Handbook: Appeals against penalties: Commissioners’ decision

In the case of a penalty which is required to be of a particular amount, for example a fixed automatic late filing penalty, the Commissioners, having considered the evidence, may

• if it appears to them that no penalty has been incurred, set the determination aside (TMA70/S100B(2)(a)(i),
• if the amount determined appears to them to be correct, confirm the determination (TMA70/S100B(2)(a)(ii).

They cannot vary the amount of the penalty except to amend it to the correct amount if it appears to them that the amount determined was incorrect (TMA70/S100B(2)(a)(iii).

If the penalty is not one which is required to be of a particular amount, for example a tax geared penalty for failure to notify chargeability, the Commissioners may

• if it appears to them that no penalty has been incurred, set the determination aside (TMA70/S100B(2)(b)(i),
• if the amount determined appears to them to be appropriate, confirm the determination (TMA70/S100B(2)(b)(ii),
• if the amount determined appears to them to be excessive, reduce it to such other amount (including nil) as they consider appropriate (TMA70/S100B(2)(b)(iii), or
• if the amount determined appears to them to be insufficient, increase it to such amount, not exceeding the permitted maximum, as they consider appropriate (TMA70/S100B(2)ba)(iv).

Ask the Commissioners to state the amount of the penalty they have decided for each offence on the determination notice, not just the total penalties. This information should be shown in the note of the hearing (see AH3960). If the Commissioners ask the reason for breaking down the global figure, tell them that without the breakdown difficulties could arise on appeal (e.g. if an appeal is made to the High Court or the Court of Session in respect of some penalties but not others) or on collection if enforcement proceedings have to be taken.

Draw the attention of an appellant who is not professionally represented, or an agent inexperienced in penalty proceedings and appeals, to the provision at Section 100B(3) concerning the right of appeal against the Commissioners’ determination to the High Court (England and Wales) or the Court of Session (Scotland).