Märtin: Application directing HMRC to close its enquiry into tax avoidance scheme granted

In Jörg Märtin v HMRC [2017] UKFTT 488 (TC), the First-tier Tribunal (FTT) directed HMRC to close its enquiry as it had taken no action in three years.

Background

Jörg Märtin (the taxpayer) claimed loss relief arising out of the activities of Great Marlborough LLP (the partnership). HMRC alleged that the taxpayer had participated in a tax avoidance scheme, similar to that considered by the FTT and the Upper Tribunal in the various Icebreaker and Acornwood cases¹.  

In February 2014, HMRC opened  an enquiry into the taxpayer's 2012/13 tax return. HMRC's letter stated the enquiry was opened on a protective basis and while it might later require information from the taxpayer none was required at that time. Later, in July 2016 HMRC opened an enquiry into the taxpayer's 2014/15 tax return on the same basis. 

Apart from some letters passing between the parties, no progress was made with either enquiry. Accordingly, on 15 November 2016, the taxpayer made an application to the FTT under section 28A, TMA 1970, for a direction that HMRC close the two enquiries. 

In response to that application, on 16 January 2017, HMRC opposed the closure of the 2012/13 enquiry and presented the taxpayer with a long list of information and documents which it required from him. As at the date of the hearing of the application the taxpayer had not provided the requested information and documents. 

On 1 March 2017, HMRC wrote to the taxpayer notifying him that it had closed the enquiry into the 2014/15 tax return. It made no amendment to his 2014/15 return. However, the taxpayer did not accept that HMRC had actually closed the 2014/15 enquiry, because HMRC had indicated they might make later amendments following its enquiry into the partnership's 2014/15 tax return.

The taxpayer applied to the FTT for a direction under section 28A, TMA 1970, that HMRC close its enquiries.   

The FTT had to determine the following two issues:

(i) whether the FTT had jurisdiction with respect to the 2014/15 enquiry; and

(ii) whether HMRC had reasonable grounds to keep the 2012/13 enquiry open.

FTT's decision

The taxpayer's application was granted.

With regard to the first issue, the FTT held that HMRC's letter of 1 March 2017 fulfilled the necessary requirements of section 28A(1) and (2)(a), TMA 1970. While the letter indicated there might be later amendments, it clearly stated these would be as a result of the enquiry in respect of the partnership. Section 28B(4), TMA 1970, entitles HMRC to amend a partner's returns following an enquiry into a partnership tax return. The 2014/15 enquiry was therefore closed and the FTT had no jurisdiction to prevent an amendment being made.

With regard to the second issue and the 2012/13 enquiry, the FTT was of the view that the information and documentation requested by HMRC was relevant and not an excessive request. The FTT commented that the taxpayer's failure to provide the information and documentation would ordinarily be sufficient 'reasonable grounds' to refuse to issue a direction requiring HMRC to issue a closure notice, even in circumstances where the tax at stake is quantified, as it was here. However, the taxpayer had argued that whilst the information was relevant it was too late for HMRC to request it as nearly three years had elapsed since the enquiry was opened. The critical issue was therefore whether HMRC's information request was too late. 

HMRC attempted to justify in its submissions why its officers had failed to request any information for over three years. However, there was no written or oral evidence before the FTT from any HMRC officer. The FTT concluded that HMRC's three year delay in making the information request was not justified and the closure application was granted.

Comment

The legislation does not provide a time limit by which HMRC is required to conclude an enquiry and it is not uncommon for tax enquiries to become protracted. A long running enquiry can be commercially disruptive, time consuming and expensive, particularly if HMRC issue a number of information requests during the course of the enquiry. There will, therefore, be occasions when a taxpayer decides that an enquiry has gone on for long enough and wishes to bring it to an end. Increasingly, taxpayers are adopting a more proactive approach and are seeking an appropriate direction from the FTT requiring HMRC to issue a closure notice.

The legislation provides that the FTT 'shall' direct that HMRC issue a closure notice within a specified period unless satisfied that there are 'reasonable grounds' for not issuing a closure notice. There is therefore a presumption that an application should be granted unless HMRC are able to demonstrate that there are reasonable grounds to refuse it.

Rather surprisingly in this case, no HMRC officers gave evidence, despite some of them being present at the hearing. In the absence of evidence, the FTT concluded that there were no reasonable grounds for refusing the taxpayer's application.

HMRC clearly considered this an important case as it was represented by leading counsel and three junior counsel. The taxpayer represented himself.

Given the importance HMRC appear to attach to this case, it would not be surprising if it sought to appeal the decision to the Upper Tribunal.

A copy of the decision can be found here.

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