In HMRC v Nigel Rogers and Craig Shaw  UT 0406, the Upper Tribunal (UT) decided that a section 8 notice to file a return does not have to be issued by an identified “flesh and blood” officer of HMRC. The UT also provided guidance to the FTT on how to address any future concerns that it has on the validity of s.8 notices.
- The taxpayers had both been issued with notices to file Self Assessment tax returns. They filed their returns late and incurred Late Filing Penalties under schedule 55 FA 2009.
- Both made Appeals to the Tribunal. Their cases were heard 'on the papers' by the First Tier Tribunal (FTT).
- In each case, the FTT, quashed their penalties, finding that HMRC had provided no evidence that a valid notice to file under section 8(1) TMA 1970 had been given to the taxpayer by an “officer of the Board”.
HMRC appealed the UT claiming that:
(1) The FTT had no jurisdiction, in the taxpayers’ appeals against penalties imposed under Schedule 55, to consider whether a valid notice under s.8 of TMA had been issued.
(2) The FTT wrongly applied a literal interpretation of s8 of TMA by concluding that it required an officer to be identified when a notice to file under s.8 was issued.
(3) The FTT was wrong to conclude that s.8(1) of TMA required a notice to file to be issued by a “flesh and blood” officer rather than a computer.
(4) Even if it had the requisite jurisdiction, the FTT should not have considered whether a notice under s.8 of TMA was issued, or validly issued, because that was not a pleaded grounds of challenge in the taxpayers’ Notices of Appeal and was not, therefore, in dispute between the parties. HMRC were denied procedural fairness by the FTT considering a matter that was not in dispute.
As turned out, the UT had recently considered the scope of the FTT’s jurisdiction to consider the validity of notices under s.8 of TMA in HMRC v Goldsmith  UKUT 325 (TCC). It concurred with that judgment and dismissed HMRC's first ground of appeal.
In terms of grounds (2) and (3), the UT found that the FTT wrongly applied a literal interpretation of s8 of TMA by concluding that it required an officer to be identified when a notice to file under s.8 was issued. It was wrong to conclude that s.8(1) of TMA required a notice to file to be issued by a “flesh and blood” officer rather than a computer saying “the Commissioners” (or “HMRC”) and the officers of Revenue & Customs are simply different manifestations of the persons required and authorised to exercise the statutory function of collecting tax".
On point (4), it agreed that was procedurally unfair for the FTT to determine that the s.8 notices were invalid without first giving HMRC the opportunity to respond.
Finally, conscious that the FTT determines large numbers of 'default paper' penalty appeals, the UT provided guidance to the FTT on how to address any future concerns that it has on the validity of s.8 notices.
As points (2) and (3) were in HMRC's favour, its appeal was allowed.
Our topical guides
How to appeal a tax penalty
This guide is designed to avoid this kind of outcome: it takes you through the essential steps in lodging a successful appeal and if followed should ensure that you 'tick the boxes' for each element of the appeal.
Grounds for appeal: HMRC error or flaw
When can an error, mistake or procedural flaw made by HMRC provide a valid ground for making an appeal?
Late Filing Penalties
Which penalties apply, why and when and how they interact: Schedule 55 of Finance Act 2009.