In Jörg Märtin v HMRC TC05942, the First Tier Tribunal (FTT) held that where there was no evidence of a valid reason for HMRC to have delayed dealing with an enquiry they had to issue a closure notice.
To formally conclude an enquiry HMRC have to issue a Closure Notice. There is no time limit on an enquiry, however if matters are dragging on without good reason, a taxpayer can ask the FTT to direct HMRC to issue a closure notice.
- It was alleged that the taxpayer had participated in an “Icebreaker” style scheme
- 19 February 2014 HMRC opened an enquiry into the 2012/13 Return:
- They opened the enquiry on 'a protective basis'; no information was requested at the time
- The taxpayer suggested to the FTT that this was not validly opened
- On 15 July 2016 HMRC opened an enquiry into the 2014/15 Return
- A few letters were exchanged; otherwise no action (including information requests) was taken in relation to the enquiries
- On 15 November 2016 the taxpayer applied to the FTT to order HMRC to close both enquiries
- On 15 December 2016 the FTT directed HMRC to provide grounds for opposing the application, with evidence, within one month
- 1On 6 January 2017 HMRC wrote to taxpayer and FTT opposing the 2012/13 closure and requesting a long list of documents and information.
- The taxpayer did not supply this information
- On 1 March 2017 HMRC closed the 2014/15 enquiry
- As the 2014/15 Return had been closed before the hearing, the FTT had no jurisdiction to order it closed
- HMRC submitted that no information had been requested originally because
- They (mistakenly) thought there was an open enquiry into a partnership of which he was a member
- They did not want to burden individual taxpayers when their cases would likely follow the Icebreaker verdict
- HMRC did not actually provide evidence to support this contention.
- The FTT held that, “in the absence of evidence”, (emphasis original) it was not satisfied that the delay was justified
- The tribunal ordered the enquiry closed
It seems that this could easily have gone the other way; if the HMRC officers involved (who were present) had given evidence to support the reason for the delay, for example; of course, this would have enabled the taxpayer to challenge their testimony.
The tribunal also noted that it is still open to HMRC to close the enquiry denying relief for the partnership losses. To appeal that decision, the taxpayer would still need to provide the documents and information HMRC had requested and the burden of proof would be on him to show that the losses were valid.
“HMRC opened (or purported to open) an enquiry…”
Case management: HMRC did not prepare the bundle of documents for the hearing until after the date it should have been provided to the taxpayer, and even then omitted several items of correspondence. The taxpayer did not pursue the point.