How do I appeal an assessment to tax during the COVID-19 outbreak?
Your first resort is requesting a review by an independent third party within HMRC. HMRC’s offices have reduced capacity due to COVID-19, so the process is likely to be slowed and you should use common sense in communicating electronically where possible. Alternatively, or if HMRC don’t change their assessment after the review, then you will can appeal to a tax tribunal. Typically this will be the First Tier Tax Tribunal (“FTT”) but the Upper Tier Tax Tribunal (“UTT”) handles more complex and high value cases as well as appeals from the FTT.
If you haven’t yet started proceedings before the FTT or UTT, you should still be able to do so by submitting a notice of appeal electronically (rather than by post).
The email address for serving new legal proceedings on HMRC in England and Wales is firstname.lastname@example.org, and the email address for corresponding with HMRC in compliance with any pre-action protocol to the Civil Procedure Rules is email@example.com. Be prepared for delays - the FTT has announced reduced staffing and services due to COVID-19.
What if I’ve missed the appeal deadlines due to COVID-19?
- HMRC has made a 3 month extension to the usual 30-day deadlines for appealing an tax assessment or a HMRC internal review, where “you or your business have been affected by coronavirus”.
- You must explain the delay is because of coronavirus in your appeal letter. Since most taxpayers will have been affected in some way, it is hard to draw a line where HMRC would not regard the 3 month extension as applying, but we would expect them to take a fairly generous approach.
- HMRC also regards the effect of COVID-19 as a reasonable excuse for missing certain tax payments / filing dates, meaning that it can provide grounds to appeal against the resulting penalties.
What happens to ongoing proceedings in the tax tribunals?
All First Tier Tribunal (FTT) proceedings have been temporarily stayed (put on hold) for 28 days until 21 April (with time limits for live proceedings adding 28 days accordingly). If you’re already in live proceedings, you or HMRC may apply for these directions to be amended, suspended or set aside in order to carry on.
Upper Tier Tribunal (UTT) proceedings are still continuing for now, and any FTT directions after 24 March have their normal effect. You should continue to comply with submission time limits and directions, and apply as soon as possible for permission where you expect delays in meeting them.
How will social distancing affect tribunal hearings?
- The FTT and UTT’s approaches differ on some details, but broadly proceedings will be heard by judges remotely by papers/email, telephone and/or video conference – HM Courts & Tribunals Service have set out how they expect these to be carried out in guidance here.
- You should provide your case documents electronically in advance of the hearing (and within the relevant deadlines), preferably in an editable format.
- To run video hearings, HM Courts & Tribunals Service uses a mix of Skype for Business (requiring a download of the app) and its own bespoke cloud video platform which is currently being tested and rolled out.
- Once a remote hearing starts, it is run by the same strict rules as a courtroom: for example, no eating, smoking, vaping or drinking (other than water) is permitted. Details of the formalities of remote hearings, together with IT instructions for joining, have been published here.
What if I would prefer a physical hearing?
- You can submit a request to the tribunal explaining why a case is not suitable for hearing by telephone/video and asking for it to be listed for a physical hearing after the COVID-19 outbreak is past.
- Physical hearings during the COVID-19 outbreak are discouraged and require specific permission – by the tribunal judge for the UTT, or by the FTT President or his delegate for the FTT.