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HMRC internal manual

Self Assessment Manual

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HM Revenue & Customs
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Appeals, postponements and reviews: reviews: review decision of appeal against FAP or surcharge (Reviewers Action Guide)

Thsi Action Guide supplements the guidance given in the Decision Makers Action Guides for dealing with appeals against fixed automatic penalties up to and including, 2009-2010 at SAM61062 or for the surcharge at SAM62021. Further technical guidance on reviews can be found in the Appeals, Reviews and Tribunals Guidance manual from ARTG4010.

Where a request for review has been made following an appeal against a fixed automatic penalty or surcharge, follow steps 1 - 17 below.

  Steps 1 - 3
   
  Step 4
  Step 5
  Steps 6 - 8
  Step 9
  Steps 10 - 15
  Steps 16 - 17

For details of how to access any of the SA functions, select ‘Index Of Functions’ on the left of the screen.

Initial action

1. If an acceptance of an offer of review has been received directly by the Appeals Review Unit (ARU) (see SAM61064 and SAM62022).
   
  On day of receipt
  * Acknowledge the request
  * Record the case on any local case management system
  * Use function MAINTAIN SA NOTES to note receipt of request for review
  * Request the file/papers from the Decision Maker
  * B/F for a short period (5 to 7 days) to ensure the relevant papers are received
  * When the file/papers are received, pass to the Reviewing Officer
2. If the acceptance of the offer was received at a local office and the request and the papers have been referred onto the Appeals Review Unit (ARU)
  * Check the papers to see that an acknowledgment has already been sent by the Decision Maker. If not, send acknowledgment
  * Record the case on any local case management system
  * Pass the request and papers to the Reviewing Officer
  * Use function MAINTAIN SA NOTES to record the actions taken
3. Customer has asked for a review (before one is offered by HMRC)
  The customer can ask for a review at any time after they have appealed to HMRC (ARTG2210). The Decision Maker must write to the customer within 30 days (or other reasonable time) setting out our view of the matter. As soon as this has been done the review time limit begins. The relevant papers should be sent by the Decision Maker to the Business Review Unit. See step 3 of the Decision Makers Action Guide (SAM61062)

Review appeal in line with ‘Reasonable Excuse’ criteria

4. See SAM10090 for ‘Reasonable Excuse’ and consider any additional information provided by the customer
   

Review conclusion in favour of the customer

5. Within 45 days (or 90 days if the transitional arrangements apply or other agreed period if different) of receipt of review request, take the following actions
   
  * Issue letter SA637 to the customer (and copy to the agent where applicable)
  * Use function AMEND FIXED PENALTIES or MAINTAIN SURCHARGE (as appropriate) to cancel the penalty, penalties or surcharge
  * Update any local case management system
  * Use function MAINTAIN APPEAL to clear the appeal signal
  * File the papers at the Review Unit
  * Use function MAINTAIN SA NOTES to record the actions taken and the location of the papers in the Business Review Unit. Also include a note of the grounds of appeal for future reference
  If the review conclusion letter SA637 cannot be sent within 45 days (or 90 days if transitional arrangements apply, or any longer period previously agreed). You should contact the customer to seek an extension of the review period. If an extension is agreed, take all the above steps to conclude the appeal
  If the customer does not agree an extension, go to step 9

Review conclusion not in favour of the customer

6. Within 45 days (or other agreed period if different) of receipt of the review request  
     
  * Send review conclusion letter SA638 to the customer (and a copy to the agent where applicable) setting out the reasons why you are unable to accept that there is a reasonable excuse. This letter will set out the customer’s options to either accept the decision or to send their appeal to tribunal and will explain that the case will be closed if the customer takes no action within 30 days  
  * Where the return is still outstanding, ask for it to be filed  
  * Where payment of the tax due is still outstanding, ask for it to be paid  
  * Update any local case management system  
  * Use function MAINTAIN SA NOTES to record the actions taken and the location of the papers  
  * B/F for 45 days, then follow steps 7 or 8  
7. Customer accepts the review conclusion  
  * Using function MAINTAIN STANDOVER, remove informal standover  
  * Using function MAINTAIN APPEAL, clear the appeal signal  
  * File the papers at the Business Review Unit  
  * Using function MAINTAIN SA NOTES, record actions taken and location of papers  
  * Update any local case management system  
  * Send a letter to the customer determining the appeal (S54 TMA1970)  
8. If there is no response received in the Business Review Unit after 45 days  
  * Using any locally agreed process between the Clearing House and the Business Review Unit, check to see if the appeal has been sent to the Tribunals Service  
  If yes  
  * Take no further action regarding the penalty or surcharge and go to step 10  
  If no  
  * Issue letter SA636 to the customer (Review officer’s deemed determination of appeal)  
  * Using function MAINTAIN STANDOVER, remove the informal standover  
  * Using function MAINTAIN APPEAL, clear appeal signal  
  * File the papers at the Business Review Unit  
  * Using function MAINTAIN SA NOTES, record actions taken and the location of the papers  
  * Update any local case management system  

Review not concluded within 45 days (or other agreed timescale)

9. If the review conclusion letter cannot be sent within 45 days (or 90 days if transitional arrangements apply, or any longer period previously agreed) see ARTG4850 and consider whether it is appropriate to seek an extension to the review period. It would be appropriate to do this if you wanted to accept the appeal (see step 5)
   
  If further time is not agreed, the decision is treated as upheld and HMRC must notify the customer
  * Issue letter SA640 to the customer (and a copy to the agent if applicable)
  * Use function MAINTAIN SA NOTES to record the action taken and the location of the papers
  * Update any local case management system
  * B/F for 45 days. Then follow steps 7 or 8

Notification from Clearing House of appeal sent to tribunal

10. The case will normally be decided by paper hearing with no attendance by HMRC.
   
Where an oral hearing has been requested by the customer, go to step 16.  
Time limit – HMRC must send a copy of their case to the Tribunals Service and a copy to the customer, within 42 days of receiving a copy of the notice of appeal to tribunal.  
Further technical guidance on appeals to tribunals not covered in this guide can be found in ARTG8200 onwards.  
If at any time after a notification has been received from the Clearing House of an appeal to tribunal, you decide not to defend the appeal, contact the Tribunals Service immediately to advise that the appeal is not to be defended and write to the customer. (This would be exceptional circumstances, such as new information or change of opinion regarding reasonable excuse.)  
In these cases follow step 5, but do not issue a SA637 letter. Issue a separate letter advising the customer of the situation. In all other cases take the following steps.  
11. Has an appeal to HMRC been received?
  -          If yes, go to step 12
  -          If no, see ARTG8230 and contact the customer to check what they want to do. Explain that they must appeal to HMRC first before the appeal can be heard by tribunal. If the conclusion is to accept the appeal to tribunal as also being an appeal to HMRC, go to step 13 and deal with the appeal as if it were a direct appeal to tribunal made at the same time as the appeal to HMRC
12. Is there an ongoing review?
  -          If no, go to step 13
  -          If yes, see ARTG4640 and inform the Tribunals Service that a review is ongoing
  -          Continue with the review as above
  -          See ARTG4640 for action after review is concluded
13. Has the appeal to tribunal been made following a Decision Makers letter (SA633) or a review conclusion letter (SA638 or SA640)?
  -          If yes, go to step 14
  -          If no, take the following action for appeals sent to tribunal at the same time as the appeal to HMRC (or treated as such from step 11)
  -          If the appeal to HMRC has already been considered and accepted, notify the Tribunals Service
  -          If the appeal to HMRC has already been considered and HMRC have issued a letter with our latest view of the matter stating that the penalty or surcharge has been upheld, go to step 14
  -          If the appeal to HMRC has not already been considered, take the following action
  ·           Consider the grounds of appeal under the ‘Reasonable Excuse’ criteria
  ·           If you decide that reasonable excuse criteria are met
  ·           Follow step 5 but do not issue letter SA637
  ·           Issue a separate notification to the customer that the appeal is accepted
  ·           Inform the Tribunals Service that the appeal is not defended
  ·           If you decide that reasonable excuse criteria are not met and that the appeal should proceed to tribunal, go to step 14
14. Complete ‘Paper Hearing Submission’ form SA641
  The time limit for completing and submitting this to the Tribunals Service is 42 days from the date that notification of the appeal was received
  -          Send the Paper Hearing Submission form and required documents to the Tribunals Service within the time limit
  -          Send a copy of the Paper Hearing Submission form and documents to the customer
  -          Keep a copy of the Paper Hearing Submission form with the appeal papers
  -          Update any local case management system
  -          Use function MAINTAIN SA NOTES to record the actions taken
15. Notification received from Ministry of Justice (MoJ) of tribunal decision
  -          If the decision is in favour of the customer
  ·           Follow the procedure at step 5 but do not issue letter SA637
  -          If the decision is in favour of HMRC
  ·           Using function MAINTAIN STANDOVER, remove the informal standover
  ·           Using function MAINTAIN APPEAL, clear appeal signal
  ·           File the papers at the Appeals Review Unit (ARU)
  ·           Using function MAINTAIN SA NOTES, record actions taken and location of papers
  ·           Send letter to customer to advise of tribunal decision and that the penalty/surcharge is now payable
  All cases
  -          Close case on any local case management system
  -          Complete Management Information Statistics (MIS) as required
  -          Feedback to Decision Maker if necessary

Election for oral hearing

16. If at any stage there is an election by the customer for an oral hearing, immediately complete a ‘Paper Hearing Submission’ form and send this together with the completed file/papers to the Local Compliance/Appeals Unit contact with a covering memo indicating that this is an oral hearing request
   
17. If HMRC wish to elect for an oral hearing of any default paper hearing case, permission must be sought from Tax Administration Advice first, through your line management. There would need to be exceptional circumstances for this