Appeals
Non-resident CGT return penalty appeals
- Last Updated: 14 September 2018
Is ignorance of the change in the law for Non-Resident's Capital Gains Tax return a valid excuse for late filing the new return, or can you claim reliance on an adviser, even where they are a tax expert?
Judges in the First Tier Tax Tribunal have been taking differing views on this matter.
What we know:
- The new rules were not well publicised.
- Many conveyancing lawyers seem to have been unaware of the changes, however conveyancers are not tax experts.
The uncertainties
- It is not easy to say whether the NRCGT regime is so especially complex that it requires taxpayers to obtain expert advice and assistance: it rather depends on the individual taxpayer.
- If it is not complex then why were so many conveyancing lawyers unaware of new 30 day filing deadline?
- Should you rely on a property lawyer/conveyancer for basic tax advice, after all they do advise on stamp duty land tax?
- If the rules are not complex then why would you need to rely on an adviser?
- If the rules are not complex then would you not suppose that you simply report your gains under normal self assessment?
- Are the rules so complex that all non residents should engage tax specialists?
Case | Judge | Appeal allowed | Reasonable excuse claimed | Other factors | |
Ignorance of the law |
Reliance on adviser | Or, Special circumstances | |||
Rachel McGreevy | Thomas | Yes | Claimed and accepted | No claimed | There were special circumstances because the gain was fully exempt under PRR and the taxpayer filed a self assessment return in which she expected to be able to declare the gain |
Patsy-Anne Sauders | Connell | Yes | Claimed and accepted | She was in Self Assessment and any person making a capital loss would normally expect to report and pay any CGT under Self Assessment | |
Robert Clive Welland | Mosedale | Penalty reduced | Claimed but not accepted | Not claimed: however solicitor did not mention it | Penalties for 3 Returns: taxpayer unable to learn from his mistakes so penalties were reduced |
Mosedale | No | Claimed but not accepted | Not claimed: Solicitor did not mention it | ||
Alan Jackson | Shepherd | Yes, in part | Claimed but not accepted | Not claimed | Penalties for 2 Returns: taxpayer unable to learn from his mistakes so penalties were reduced. Penalties were miscalculated by HMRC so reduced further |
Raymond Hart | Brannan | Yes | Reliance on adviser | ||
Steven Harrop | Scott | No | Not accepted as an excuse | ||
Mei Chung Wong | Scott | No | Not accepted as an excuse | ||
John Nugent | Scott | No | Not accepted as an excuse | ||
Timothy Cobb & Caroline Wenn | Scott | No | Not accepted as an excuse | ||
Eric Scowcroft | Thomas | Yes | Yes, accepted: not well publicised by HMRC | Yes: conveyancer/Solicitor did not mention it | |
Thomas | Yes | Yes, not well publicised by HMRC |
Yes: conveyancer/Solicitor did not mention it. Agent Update 51 which HMRC had referred to was issued 5 months after the conveyancing date |
||
Nigel Pitcock & Karen Pitcock | Scott | No | No, non residents should check the law | Conveyancer/Solicitor did not mention it | |
Lauren Murdock | Brown | No | No, non residents should check the law | Para 17 cap apparently not considered | |
Ann Rowan-Smith | Beare | Yes | Claimed and accepted: | agreed a genuine error, thought gains reported under normal SA rules | |
Barry Gilbert | Hellier | No | Claimed not accepted as no evidence of trying to find out the law: non residents should check the law |
Links to our practical guides
Grounds for Appeal: Reasonable Excuse
Non-Resident CGT: UK residential property
The Non-Residents' Tax Toolkit
External links
All the cases above have links through the individual write up.