Alexander Revell v HMRC – TC4887 FTT 16 February 2016 

Facts of the case 

After HMRC carried out a reconciliation of Mr Revell’s PAYE records from his various employers over a number of years HMRC detected an underpayment. Consequently HMRC sent out a self-assessment return for the year ended 5 April 2009 to Mr Revell’s last known address. Mr Revell did not complete that return because he never received it. In the absence of a completed return, HMRC issued a determination of tax due for the year in question pursuant to s 28C of the Taxes Management Act 1970 (“TMA”). Mr Revell disputed the determination on the basis that no notice under s.8 TMA 1970 to file a self-assessment return was ever properly made. Nonetheless, he had voluntarily completed a self-assessment for 2008-09 which had the effect of displacing the determination referred to above. 

The First-tier Tribunal found that no request to deliver a return had been made because HMRC had sent it to the wrong address – despite the fact that it had received a notification of the taxpayer’s up-to-date address on form P60. The Tribunal rejected HMRC’s analysis of the position and found that the relevant sections of TMA were absolutely clear and provided no basis for the submission that by making an unsolicited return the taxpayer had waived the requirement for a notice under s 8. The legislation made no provision for such a waiver to be effective. If Parliament had meant the submission of a voluntary return amounted to a waiver of the requirement to give notice then it could have said so. Section 28C TMA only applied where “a notice has been given to any person under s 8 …” As no notice was given to Mr Revell in respect of the 2008-09 return, pursuant to s 8, there could be no valid determination under s. 8C. However, it was possible for a discovery assessment to be made pursuant to s 29 TMA so HMRC were not entirely without tools to deal with the situation. 

The taxpayer’s appeal was allowed. 

 

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