Under TMA70/S59C(7) an appeal may be made against a surcharge imposed for late payment of income or capital gains tax. TMA70/S59C(8) applies most of the appeal provisions in TMA70 to appeals against surcharges, including those concerning postponement applications (TMA70/S55), and the general guidance on appeals in this manual applies to appeals against surcharges.
As 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, cannot vary the amount of the surcharge. Under TMA70/S59C(9) they may
If an appeal is made against a surcharge, the onus is on HMRC to
prove that the tax was paid late. Only once this onus is discharged
is it necessary to consider whether or not the appellant had a
reasonable excuse for late payment.
Frequently, the appellant will admit to not paying the tax on time and claim that they had a reasonable excuse for not doing so. In such cases the onus on HMRC to prove that the tax was paid late is discharged by the acceptance by the appellant that the tax was paid late.
Once it is accepted that the tax was paid late, it is up to the taxpayer to show that they had a reasonable excuse, i.e. the evidential burden (see AH) shifts to them.
Specific guidance on appeals against surcharges and what constitutes a reasonable excuse is in the SA Manual.