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HMRC internal manual

Enquiry Manual

Penalties: Culpability - Defences: Reasonable Excuse -Introduction

TMA70/S118(2)

EM5151 explains that circumstances when a claim may be made under S118(2) because further time may have been allowed.

As well as ‘extra time’ EM5151 the subsection also provides that ‘… where a person had a reasonable excuse for not doing anything required to be done he shall be deemed not to have failed to do it unless the excuse ceased and, after the excuse ceased, he shall be deemed not to have failed to do it if he did it without unreasonable delay after the excuse had ceased.’

There is no statutory definition of reasonable excuse, which “is a matter to be considered in the light of all the circumstances of the particular case” (Rowland V HMRC [2006] STC (SCD) 536 at paragraph 18). This was confirmed by the First Tier Tribunal, in Anthony Wood trading as Propaye V HMRC (2011 UK FTT 136 TC 001010), in the judgement released on 23 February 2011.

HMRC consider reasonable excuse to be something that stops a person from meeting a tax obligation despite them having taken reasonable care to meet that obligation. It is necessary to consider what a reasonable person, who wanted to meet their obligation would have done in the same circumstances and decide if the action of the person met that standard as outlined by Judge Medd in The Clean Car Company (LON/90/138X)

‘One must ask oneself: was what the taxpayer did a reasonable thing for a responsible trader conscious of and intending to comply with his obligations regarding tax, but having the experience and other relevant attributes of the taxpayer and placed in the situation that the taxpayer found himself at the relevant time, a reasonable thing to do? Put in another way which does I think alter the sense of the question; was what the taxpayer did not an unreasonable thing for a trader of the sort I have envisaged, in the position that the taxpayer found himself, to do?’

Whether a person has a reasonable excuse will depend on the particular circumstances in which the failure or obstruction occurred and the abilities of the person who has failed. What is a reasonable excuse for one person may not be a reasonable excuse for another person.

An unexpected combination of events may together be a reasonable excuse.

It is not possible to give a comprehensive list of what might be a reasonable excuse as each case will depend on the specific circumstances.  

In every case of substance you should ascertain, as far as possible, the taxpayer’s own reasons for the failure. This is best done in the course of an interview. The taxpayer, especially if unrepresented, must be made aware of the provisions of TMA70/S118 (2) and their potential effect on the settlement. You must, of course, show that you are prepared to listen to the taxpayer and consider carefully what you are told.

You will have to test the taxpayer’s explanation against the information you already hold and you will be able to take into account events subsequent to the actual offence.

In cases of failure the taxpayer’s agent may well be responsible for the delay. Even if only partially to blame the agent will realise that he or she is vulnerable to a negligence claim by their client. The effect of this is that the agent is likely to contest HMRC’s allegation more vigorously, and with less professional detachment, than if it was only client’s money at stake. You should not allow the discussion to get heated or to be conducted on a personal or unprofessional level.

For failures by companies to deliver returns under CT Self Assessment provisions guidance on claims for reasonable excuse is to be found at CTM94140.