Friday, January 13, 2006



A frustrating feature of published tax decisions and judgements is that they do not always fully spell out the facts on which the decision is based. My eye was caught by a comment in the High Court judgement in O’Sullivan v Philip, which concerned an HMRC enquiry notice, that “as the notice was given within a year of the date of the amendment, it was clearly in time”. This was actually a quote from the Special Commissioner’s decision. This recounts that the amendment was made on 9 October 2001 and the enquiry notice in respect of which it was issued was dated 8 October 2002.

It is not at all clear to me that the notice was in time! In Wing Hung Lai v Bale (1999 STC (SCD) 238) it was held that the notice had to be served on (ie received by) the taxpayer within the 12 month period. A notice issued on 8 October 2002 could meet this test only if it had been hand delivered.

The taxpayer appealed only against the substantive decision not this procedural one. What we are therefore left with is the question of whether the notice was in fact hand-delivered, which would be highly unusual, or if not whether Dr Williams intended to disagree with the earlier decision of Mr Everett.

This is clearly an issue of major importance if Dr Williams did indeed feel that the Wing Hung Lai decision was wrong. Does anyone know the answer?

Robert W Maas


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