Appendix 22: the Special Commissioners
The Valuation Office Agency's (VOA) technical manual relating to Inheritance Tax.
If a taxpayer disagrees with an assessment or a determination of liability to tax made by HMRC, there is a right of appeal, which normally has to be made within 30 days of the service of the formal notice.
Appeals will be considered by the Appeal Commissioners, unless the matter at issue concerns the value of land in the UK in which case reference is to the Lands Tribunal.
There are two distinct bodies of Commissioners - the General Commissioners and the Special Commissioners - and both are independent of Her Majesty’s Revenue & Customs. All appeals to Commissioners in respect of IHT matters are heard by the Special Commissioners.
The General Commissioners are appointed by the Lord Chancellor and are unpaid lay people of good standing who are appointed to deal with cases arising in a particular area - referred to as a Division.
The members are assisted by a Clerk, who is often a solicitor. The General Commissioners deal mainly with matters related to Income, Corporation and Capital Gains Taxes - they have no jurisdiction in IHT matters.
The Special Commissioners are a tribunal with full-time members appointed by the Lord Chancellor following consultations with the Lord Advocate and may be barristers or solicitors. Appeals are normally heard before a single Special Commissioner. Until the rules were changed in September 1994 proceedings at appeal hearing were held in private and were confidential. Decisions were not generally publicised.
Special Commissioners hearing after 1 September 1994
The procedure rules for the General and Special Commissioners were changed with effect from 1 September 1994. For the Special Commissioners the new rules apply only to “new” proceedings. That is, those for which notice of a hearing is first given by the Clerk on or after that date.
The presumption of the rules is that the Special Commissioners’ hearings will be in public. HMRC can request a hearing in private but the decision rests with the Commissioners. The taxpayer can however require a private hearing.
A taxpayer may be represented by any person but the Commissioners can (with certain exceptions) refuse to hear that person if they think there is sufficient cause to do so.
The Commissioners can publish reports of their decisions, if necessary, in anonymised form. Costs can be awarded but only where in the opinion of the Special Commissioners a party has acted wholly unreasonably in connection with the appeal.
Inheritance Tax cases
In IHT cases where agreement of a liability to tax has not been reached the Board may issue a notice of determination under s.221 IHTA 1984. The notice may specify any matters considered by the Board to be relevant for the purposes of the Act. The person on whom a notice of determination has been served may, within 30 days of the service, appeal by notice in writing to the Board (s.222). Subject to exceptions in s.222(3) an appeal will normally be to the Special Commissioners but under s.222(4) if the value of land in the UK has to be determined the appeal will be to the Land Tribunal (see Appendix 23).
In proceedings before the Special Commissioners the DV’s role will be confined to that of an expert witness, giving a professional opinion supported by such evidence as may be available. All matters of advocacy will be dealt with by the HMRC Solicitor, with whom close liaison should be maintained at all stages of the case.
Statutory Instrument 1994 No 1811 – The Special Commissioners (Jurisdiction and Procedures) Regulations 1994 sets down the procedures to be followed. Matters of particular interest include:
Listing & Notice of hearing (Regulation 3)
General power to give directions (Regulation 4)
Summoning of witnesses (Regulation 5)
Agreement of documents (Regulation 6)
Preliminary hearing (Regulation 9)
Power of Special Commissioners to obtain information (Regulation 10)
Postponements and Adjournments (Regulation 11)
Expert evidence (Regulation 12)
Constitution and sittings of Tribunal (Regulation 13)
Representation at hearing (Regulation 14)
Hearings in public or in private (Regulation 15)
Failure of parties to attend hearing (Regulation 16)
Procedure and evidence at hearing (Regulation 17)
Decisions of Tribunal (Regulation 18)
Review of Tribunal’s decision in principle or final determination (Regulation 19)
Publication of decisions in principle or final determinations (Regulation 20)
Orders for costs (Regulation 21)
Transmission to the High Court
Any party who is dissatisfied on a point of law with a decision of the Special Commissioners may appeal to the High Court (in England and Wales), or the Court of Session (in Scotland).
The notice of appeal must be served within 56 days after the date when the decision was given.