In Patel & Anor v HMRC [2018] TC 6426 the FTT found that HMRC could not open valid enquiries into returns which had been submitted voluntarily without any notice to file being issued.

A notice to file an income tax self-assessment return is given under s8(1)TMA 1970.

Ms S Patel and Ms U Patel voluntarily filed paper tax returns for 2008/09 because they had been unable to register for online filing:

  • HMRC opened enquiries into both returns purportedly under s9A TMA.
  • In 2015 both taxpayers applied for closure notices to be issued under s28A TMA and then appealed the notices issued.

The FTT held that as voluntary returns had not been made under s8(1) TMA 1970, an enquiry could not be opened under s9A. As there was no valid enquiry a closure notice could not be issued under s28A.

  • To “treat” a return as made under s8 involves judicial legislation and not interpretation and a policy judgement which is a decision for parliament and not the tribunal.

The FTT judge dismissed HMRC’s alternative arguments that:

  • Their decision to treat voluntary tax returns as made under s.8 TMA was a lawful exercise of their wide managerial discretion, and
  • s9 of the Commissioners for Revenue and Customs Act 2005 “clothes” HMRC’s practice of treating a voluntary return as a return under s.8 TMA with the force of law

It concluded by saying that HMRC’s powers here “do not give HMRC carte blanche to dispense with express statutory requirements” and that their arguments about the sweeping powers granted by s9 CRCA were a “dramatic and somewhat disturbing submission”. 


HMRC did not follow the other options available to them, such as issuing a s.8 notice to file, or by issuing Discovery assessments under s29 or by simple assessments under s28H.


Grounds for appeal: HMRC error or flaw

Penalties: failure to notify

Closure notices

External link:

Patel & Anor v HMRC [2018] TC 6426


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