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Upper Tribunal confirms right of appeal: protracted correspondence amounts to opening an enquiry and issue of a closure notice

Nick Beecham
18/06/2014
In the case of Portland Gas Storage Limited FTC/123/2013, the Upper Tribunal has confirmed that our client has a right of appeal against HMRC's decision to reject its amendment of an SDLT return on In the case of Portland Gas Storage Limited FTC/123/2013, the Upper Tribunal has confirmed that our client has a right of appeal against HMRC's decision to reject its amendment of an SDLT return on the basis that the amendment was (according to HMRC but disputed by our client) made out of time.  In doing so, the Upper Tribunal allowed our client's appeal against the decision of the FTT to strike out the appeal.

In VAT and SDLT matters, the statute prescribes only limited matters against which there can be an appeal to a tax tribunal.  One of the prescribed matters is the issue of a closure notice by HMRC (Paragraph 35(1)(b) Schedule 10 FA 2003).  HMRC asserted that in rejecting our client's amendment of its SDLT return on the basis that it was out of time, it had neither enquired into the amendment, nor issued a closure notice, so that our client had no right of appeal.

The Upper Tribunal held that although HM Revenue & Customs' initial letter rejecting the amendment did not amount to the opening of an enquiry (on the basis that the only examination carried out by HMRC at that stage was to ascertain that the filing date of the original return was more than 12 months before the amendment was sought) the subsequent protracted correspondence between HMRC and our firm amounted to HMRC opening an enquiry and issuing a closure notice, against which our client has a right of appeal.

This raises a point of considerable public importance by preventing HM Revenue & Customs from regarding itself as the final arbiter in such matters.

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