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bigduckontax, Accountant
Category: Tax
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If you disagree with the decision of the first tier tribunal

Customer Question

If you disagree with the decision of the first tier tribunal and you ask their permission to appeal to the upper tribunal and while you are waiting for this decision can hmrc issue penalty notice or do they have to wait for the outcome of the permission decision?

This is relating to VAT Tribunal
Submitted: 3 years ago.
Category: Tax
Expert:  bigduckontax replied 3 years ago.

Hello, I'm Keith and happy to help you with your question.


Whilst technically HMRC are within their rights to impose a penalty following a success at first tier surcharge penalties should always be considered in the light of the taxpayer's intention in defaulting and the scale of the infringement. This penalty should immediately be the subject of a separate appeal pending a hearing at a higher level. Apply to have it cancelled. It has probably been automatically imposed by some computer program. The appeal at this stage is simply by letter to the tax office which issued the penalty.

Customer: replied 3 years ago.



The penalty is in relation to mis declaration of VAT.

At the hearing of the mis declaration appeal my appeal was dismissed.

So I had applied for permission to appeal to the upper tribunal.


Whilst I am waiting for the permission the Revenue issued a mis declaration penalty which I appealed and at the hearing of the penalty appeal my appeal was accepted as the first tier tribunal had not yet considered the request for permission to the upper tribunal.


My application for appeal has a technical error ie I had not submitted one of the form which I not received and I informed this to the tribunal who are reconsidering the permission application.


At the first hearing of the penalty appeal I informed the tribunal that I had applied for permission to appeal to the upper tribunal and the Revenue asked for it to be set a side till either the permission was denied for I had lost the the appeal in the upper tribunal. Although the commissioner or the judge who seemed quite knowledgeable on the subject asked the HMRC if they were within their right to issue the penalty at this stage i.e. before the decision on the permission and or the decision from the upper tribunal.



Whilst I am writing this I am still waiting for the permission to appeal.


In the meantime the HMRC have re listed the penalty hearing which is on this Friday.


I would love to tell the commissioners that the penalty issued is incorrect and the case should be dismissed.


But I need to be sure and be able to quote the correct section or case law to back it up.


I think the Revenue have been hasty in issuing the penalty notice and I need something to support this Have yo come across this.


Happy to call for a quick tel chat or you can call me on 020 8952 2051 my name is A Padhani.








Expert:  bigduckontax replied 3 years ago.
I feel that you are becoming over involved with detail. HMRC loose about 60% of appeals against VAT penalties and are noted for an over aggressive approach in this area. The commissioners will be well aware of the position. i do not think you need to worry. It is the nitty gritty of your main appeal in which you and your legal team should be fully conversant.

You are aware I trust that in appeals at this level the losing side may have to pay the costs of the opposing side?