In Alison & Richard Bradshaw [2018] TC6582 penalties for late filing a non residents CGT return were cancelled: it was reasonable to rely on a conveyancing solicitor to point out a 30 day filing requirement.
- The taxpayers were Canadian resident
- They sold their UK property.
- They made loss, no CGT due was due
- Unaware of the new 30 day reporting obligation for Non-Resident Capital Gains Tax they both filed their separate returns late.
- HMRC assessed Late Filing penalties of £100 for the initial failure to file by the due date, £900 in daily penalties for 90 days, £300 for being 6 months late and £300 for being 12 months late.
- The daily penalties were later dropped when HMRC made a policy change.
The Bradshaws appealed against the assessments claiming that they had a Reasonable Excuse for late filing:
- The solicitor handling the conveyancing did not know about the new law, and Agent Update 51 which HMRC had referred to was issued 5 months after the conveyancing date.
- Data published by HMRC showing that 36% of NRCGT filings were late shows it was insufficiently publicised.
- They had returned the disposal on their Canadian tax returns.
Judge Thomas agreed that the appellants should have been able to rely on a solicitor to provide them with advice to file a return and the adviser's ignorance of the law gave them a reasonable excuse for late filing.
He did not find anything in the UK/Canada tax treaty that provided any exemption from reporting in the UK.
The penalties were cancelled
Comment
Another conflicting decision as to who should know what and when. Also another case where it seems that HMRC incorrectly calculated tax geared penalties. The couple had made a loss, see Grounds for Appeal: HMRC error
Links to our practical guides
Grounds for Appeal: Reasonable Excuse
Non-Resident CGT: UK residential property
The Non-Residents' Tax Toolkit
External links
