In Nigel Pitcock & Karen Pitcock v HMRC [2018] TC6590 two non residents incurred late filing penalties for failing to notify the disposal of their UK residence within the 30 day time limit: their ignorance of the change in the law was deemed to be a reasonable excuse for their failure.
- The appellants only realised that NRCGT returns were required when they contacted HMRC by telephone in connection with their 2015/16 tax returns.
- They immediately filed the NRCGT returns on 15 May 2016, it was 6 months overdue.
- Being already in Self Assessment they assumed that Capital Gains Tax would be covered in their next Self-Assessment tax returns.
- HMRC assessed late filing penalties.
- The taxpayers appealed (there were twice the penalties as the property was jointly owned) on the basis that:
- Neither their estate agent nor their solicitors had mentioned the new legislation although both were aware that the appellants were non-resident.
- HMRC should have advised all non-residents of the change in the law.
- It is completely unfair that both of them should be penalised just because the property was jointly owned.
Judge Ann Scott found:
The appellants’ absence from the UK cannot in itself amount to a reasonable excuse. In fact, not living in the UK should, if anything, impose a greater obligation to ensure that all necessary requirements were met timeously.
When they decided to sell the property, they did not check what, if anything was required of them in terms of reporting the sale to HMRC. They assumed that their self-assessment returns would suffice.
She noted the argument that none of the advisors were aware of the change in the legislation and she found that 'unfortunate' as she found that HMRC did publicise the changes very widely in the UK.
In dismissing the appeal the judge noted that 'In most countries in the world, tax law changes on what can be an alarmingly regular basis. A prudent taxpayer would have checked. It was easy to check and, as the appellants state, they were able to file the return very shortly after having done so. I conclude that lack of awareness of an obligation to file a NRCGT return was not a reasonable excuse.'
Comment
The problem is that conveyancing lawyers do not normally advise on direct tax that is unless it is specifically included in the scope of their engagement and this makes it difficult to claim reliance their advice. This is another case which considers whether ignorance in the UK's changes in tax rules is a reasonable excuse for a non-resident.
Links to our practical guides
Grounds for Appeal: Reasonable Excuse
Non-Resident CGT: UK residential property
The Non-Residents' Tax Toolkit
External link