SAM61062 - Interest, penalties and surcharge: penalties: FAP: reasonable excuse appeal against (Decision Makers Action Guide)
This guidance applies from 1 April 2009 and refers to tax returns received for 2009-10 and earlier. For further information regarding the new rules for the tax years 2010-11 and later, see SAM61200 onwards.
This Action Guide for Decision Makers supplements the guidance given at SAM10060 ‘Handling an appeal against a charge based item’. Before moving to step 1 below, the appropriate steps of the Action Guide at SAM10061 should be followed to record and acknowledge the appeal and at SAM11071 to deal with the informal postponement of the penalty.
When dealing with appeals against fixed automatic penalties consider the initial action at steps 1 - 4 below and as appropriate steps 2 - 15. The guide is presented as follows.
| Note: If a request for a review is received in the local office |
See Step 9 |
For details of how to access any of the SA functions, select ‘Index Of Functions’ on the left of the screen.
Initial action
| 1. |
Is the appeal valid? See ‘Valid Appeals’ (SAM10020) |
| 2. |
If the taxpayer has sent their appeal to Tribunal at this stage, follow the guidance in the Appeals, Reviews and Tribunals Guidance manual at ARTG2210 and ARTG8230. Immediately arrange for the relevant papers to be sent to the Appeals Review Unit (ARU) (SAM61064) |
| 3. |
If the taxpayer has asked for a review at the same time as the initial appeal to HMRC, follow the guidance at ARTG2210. The Decision Maker must explain what our view is and as soon as this has been done, the review time limit begins. The relevant papers must then be passed immediately to the Appeals Review Unit (ARU) |
| 4. |
Consider the grounds for appeal against the reasonable excuses described in subject ‘Grounds Of Reasonable Excuse FAP’ (SAM61070) |
| |
Where the grounds for appeal |
| |
- Correspond with (or are very near to) those in that subject go to step 5
|
| |
- Resemble one of the reasonable excuses in that subject go to step 6
|
| |
- Seem to be valid but do not appear in that subject go to step 11
|
| |
- Do not fit the reasonable excuse criteria and you wish to resist the appeal go to step 7
|
| |
- If the return has not been filed, consider steps 12 to 15
|
Top of page
Grounds for appeal correspond with those in subject ‘Grounds Of Reasonable Excuse FAP’
| 5. |
Unless there are grounds for suspecting the excuse to be false, allow the appeal. |
| |
Note: You would be justifiably suspicious if a taxpayer repeatedly - from year to year - puts forward ‘reasonable excuses’ according to the leaflet |
| |
- Using function AMEND FIXED PENALTIES to cancel the penalty (penalties)
|
| |
- Issue a letter to the taxpayer confirming your decision
|
| |
- Using function MAINTAIN APPEAL, clear the appeal signal
|
| |
- Using function MAINTAIN SA NOTES, record the actions taken and location of the papers
|
| |
- Note the grounds for appeal
|
Top of page
Grounds for appeal resemble those in subject ‘Grounds Of Reasonable Excuse FAP’
| 6. |
Consider the appeal carefully. If necessary ask the taxpayer for more information / evidence |
| |
Where after this consideration |
| |
- There is no doubt that the appeal should be allowed follow action in step 5
|
| |
- You have reached a clear conclusion that the appeal should be resisted follow action in steps 7 - 10
|
| |
- You have any remaining doubts about whether or not the appeal should be allowed follow action in step 11
|
| |
- If the taxpayer fails to provide further information requested, the appeal should be resisted. Follow steps 7 - 10
|
Top of page
Grounds for appeal are clearly unacceptable
| 7. |
Issue a letter SA633 (available on SEES) to the taxpayer setting out the reasons why you are unable to accept the taxpayer’s ‘reasonable excuse’ and suggest that the taxpayer reconsider the matter. This letter offers a review and advises the options available to the taxpayer. You should enclose a ‘request for review’ form SA634 (available on SEES) if appropriate. |
| |
The SA633 letter must be sent to the taxpayer, with a copy to the agent, even if the appeal was made by the agent on their client’s behalf. |
| |
- Where the return is still outstanding ask for it to be filed
|
| |
- Using function MAINTAIN SA NOTES, record the actions taken and location of the papers
|
| |
|
| 8. |
If the taxpayer accepts the decision and withdraws the appeal |
| |
- Using function MAINTAIN STANDOVER, remove the informal standover
|
| |
- Using function MAINTAIN APPEAL, clear the appeal signal
|
| |
- Using function MAINTAIN SA NOTES, record actions taken and location of papers
|
| |
- Send determination of appeal letter
|
| 9. |
If the taxpayer accepts the offer of a review and the request for a review is received in the local office |
| |
On the day of receipt |
| |
|
| |
- Immediately forward all papers/file to Appeals Review Unit (ARU) (SAM61064)
|
| |
- Using function MAINTAIN SA NOTES, record action taken
|
| 10. |
If there is no response in the local office after 45 days |
| |
- Check SA Notes to see if a request for an internal review has been sent to the Appeals Review Unit (ARU)
If yes
|
| |
- Take no further action regarding the penalty
|
| |
- Ensure that the papers/file have been requested by the Appeals Review Unit (ARU) and have been sent
|
| |
- If not sent, send papers directly with a covering note
If no
|
| |
- Issue letter SA635 (Decision Makers deemed determination of appeal) to the taxpayer
|
| |
- Using MAINTAIN STANDOVER to remove informal standover
|
| |
- Using function MAINTAIN APPEAL, clear the appeal signal
|
| |
- Using function MAINTAIN SA NOTES, record action taken and location of papers
|
| (This text has been withheld because of exemptions in the Freedom of Information Act 2000) |
Top of page
The return has not been filed but there is no reasonable excuse
Top of page
The return has not been filed and the reasonable excuse is continuing
| |
Note: Where the grounds for appeal are clearly unacceptable go to step 7 otherwise proceed as below |
| 13. |
If the reasonable excuse is still continuing |
| |
- Advise the taxpayer that you cannot fully consider the appeal until the return is sent back
|
| |
- Explain that any reasonable excuse must have existed from the filing date to the day before the return is received
|
| |
- Contact the taxpayer again after 30 days to determine if and when the reasonable excuse has come to an end
|
| |
- Repeat the procedure as necessary
|
| |
If the taxpayer fails to respond |
| |
|
Top of page
The return has not been filed and the reasonable excuse has ended
| |
Note: Where the grounds for appeal are clearly unacceptable go to step 7 otherwise proceed as below |
| 14. |
If the reasonable excuse has come to an end |
| |
- Allow the taxpayer 14 days to send in the return
|
| |
If the taxpayer still does not send in the return |
| |
- Request that the taxpayer withdraws the appeal
And
|
| |
- Ask the taxpayer to send in the return
|
| |
If the taxpayer |
| |
- Does not withdraw the appeal
Or
|
| |
|
| |
|
Top of page
The taxpayer fails to respond to your enquiries
| 15. |
If the taxpayer fails to provide further information to show that the reasonable excuse is continuing (step 13), or withdraw the appeal (step 14), then there is no evidence of any continuing reasonable excuse |
| |
- Go to steps 7 - 10 and resist the appeal
|
| |
Before talking this action, you may also consider what action can be taken to obtain the return, for example a further letter, telephone call or asking the Recovery office to make a personal call. |
| |
Alternatively if you suspect that further tax may be due consider asking the Recovery Office to make a Revenue Determination. But determinations should not be issued simply as a means of forcing the return unless you believe tax is at risk for the year covered by the return |
