Accountants BKL have reported some confusion by a First Tier Tribunal judge over whether there is any legal requirement to use a proof of posting certificates when filing a tax return.

They say that

"Judge Alastair J Rankin heard three cases appealing late CIS return penalties on 22 May "on the papers" (i.e. without hearing oral argument from either side). He had no apparent difficulty with any of the cases: there was no proof of posting so he dismissed the appeals and upheld the penalties.

By contrast, the case of Christopher Michael Oddy [2014] UKFTT 673 (TC) was a full hearing before a two-person Tribunal with a report running to 80 paragraphs. Again, there was no proof of posting but this time the Tribunal (quoting from an earlier case) observed that "obtaining proof of posting is not a legal obligation and HMRC cannot insist upon it. As [the advocate] says, it can be an onerous requirement, particularly for a small business with extended working hours". The Tribunal found, on the balance of probabilities, that the returns were posted at a time when in the ordinary course of post they could have been expected to arrive in the hands of HMRC by the due date; and allowed the appeals against the penalties."

The earlier case mentioned in Oddy is Heronslea v HMRC [2011] where the FTT looked to the Interpretation Act 1978 and applied s7 where:

"an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or 'send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document."

So following Heronslea there is no need to have a proof of posting but it is strongly advised to log the day on which the item was posted and if appealing any late filing penalties where post services are an issue to remember to refer to the Heronslea decision.


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