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	United Kingdom VAT & Duties Tribunals Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> All England Film Caterers Ltd v Revenue & Customs [2007] UKVAT V20183 (31 May 2007) URL: http://www.bailii.org/uk/cases/UKVAT/2007/V20183.html Cite as: [2007] UKVAT V20183

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20183

DEFAULT SURCHARGE – Late payment – Change of stagger – Appellant's bookkeeper unaware of change – Whether request for change had been duly authorised by Appellant – Whether bookkeeper's unawareness of change was reasonable excuse – Appeal dismissed

LONDON TRIBUNAL CENTRE

ALL ENGLAND FILM CATERERS LTD Appellant

and –

THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: SIR STEPHEN OLIVER QC (Chairman)

JOHN ROBINSON

Sitting in public in London on 2 May 2007

Suzanna Bishop MICM, bookkeeper, for the Appellant

Mrs Pauline Crinnion for the Respondents

© CROWN COPYRIGHT 2007


 


DECISION

1. All England Film Caterers Limited ("All EF") appeal against a five percent surcharge relating to the late submission of their return for the 06/06 period. The return and payment, due by the end of July 2006, were received just over a month late.
2. The 06/06 period was the first period following a change of "stagger". The last three month stagger period had been 04/06. But for the change, the next return would have been received by the Customs nearly on time.
3. All EF's primary case is that the change of stagger had been applied for without their authority and consequently the grant of the new stagger had been unlawful and ineffective.
4. I heard evidence from Mrs M Robins, a director of All EF, and from Suzanne Bishop, bookkeeper to All EF.
5. All EF had commenced trade on 16 October 2004 following a transfer of business from Central England Film Caterers. All EF provides catering for film units operating throughout the UK. All EF is owned by Mr D Robins and Mrs M Robins. Its registered office has, at least since October 2004, been Garden Cottage, Swifthouse Lane, Stoke Lyne, Bicester.
6. The accountants to All EF have at all times been Messrs Upstone Blencowe of Brackley, Northants. Until February 2006, when All EF engaged Suzanna Bishop as bookkeeper, Upstone Blencowe provided VAT services to All EF and on at least one occasion in 2005 a Mr Fred Filer of Upstone Blencowe had signed All EF's VAT returns.
7. On 17 March 2006 Upstone & Blencowe wrote a letter to the Customs. This stated that All EF's financial year end was 31 March. The letter asked for the quarterly VAT returns to be amended to coincide with that date. Customs wrote back on 7 April 2006 to All EF at Garden Cottage stating that the request to change tax periods had been approved.
8. All EF's last period under the old stagger was 04/06; the letter of 7 April informed them that the return for this period should be completed and sent in. The change of tax period meant that All EF's next tax period would be the two month period to the end of June 2006. The due date was 31 July 2006.
9. The "change of tax period letter" had not, said Mrs Robins in evidence, been seen by her. Mr Robins (the other director and her ex-husband from whom she had become separated) was not called to give evidence. The letter should, she said, have gone into Suzanna Bishop's tray.
10. Suzanna Bishop had started working for All EF in February 2006. Her pattern of work was to go in once a month. In February 2006 she had taken on the VAT return work from Fred Filer of Upstone Blencowe. She had worked on the 01/06 return with Upstone Blencowe. The 04/06 return had been completed by her alone. In July 2006 she had not, she said, thought about VAT. She had gone in on August 31 2006 and completed the return and posted it together with a cheque at about 8pm. (She had been ill, which explains why she had not come in earlier in August.)
11. There was no suggestion that the return for the two month period 06/06 had not been received at Garden Cottage. It shows the due date as 31 July 2006. The completed version is stamped as having been received by Customs on 4 September 2006. Mr Robins (who, has noted, did not come and give evidence) is recorded as having called the Customs' Enquiry line on 23 August to ask why an assessment had been made; he had been told that the return and payment had not been sent in by the due date.
12. I heard no evidence from anyone from Upstone Blencowe.
13. I am satisfied that the change of tax period letter of 7 April and the 06/06 return were both received at Garden Cottage. I accept that Mrs Robins has no recollection of seeing the 7 April letter. But Mr Robins was involved in the business and there is no evidence that it did not pass through his hands. Suzanna Bishop presented as All EF's primary case the absence of authority on part of Upstone Blencowe to request, on behalf of All EF, the change of tax period.
14. I cannot accept this. Upstone Blencowe had been All EF's accountant and, at least until the end of February 2006, had had responsibility for All EF's VAT compliance. If evidence were required, this would be found in the fact that Upstone Blencowe had itself carried out All EF's compliance obligations by signing the VAT return for the 04/05 period. There is no evidence that All EF withdrew the authority, even when Suzanna Bishop took on the VAT return function. A different conclusion might have been available if someone from Upstone Blencowe had come and given evidence. The same goes for Mr Robins, he, after all, was a director of All EF and I cannot rule out the possibility that he had, by his words or actions, given Upstone Blencowe continuing authority to act in All EF's behalf on VAT matters.
15. Responsibility for VAT returns passed to Suzanna Bishop by the start of March 2006. I cannot however conclude the transfer of the VAT functions to Suzanna Bishop changed or withdrew Upstone Blencowe's authority.
16. It is, I can see it, reasonable to expect that Upstone Blencowe would have explained to Suzanna Bishop what they were doing in respect of All EF's tax periods and what the implications of a change would be All EF. The letter of 17 March 2006 should at least of been copied to Suzanna Bishop and its implications explained to her. No reason was given as to why Upstone Blencowe had not done these things.
17. In this connection it is relevant to mention that, by Section 71(1)(b) of VAT Act 1994, reliance on another in performing any task is ruled out as a reasonable excuse. Thus even if Upstone Blencowe should have put Suzanna Bishop fully in the picture, All EF cannot advance that as a reasonable excuse.
18. In any event All EF were duly notified by Customs of the change of tax period (by 7 April 2006 letter) and 06/06 tax return specified the new due date.
19. For those reasons I have to reject the arguments advanced by Suzanna Bishop. I therefore dismiss the appeal.

SIR STEPHEN OLIVER QC

CHAIRMAN

RELEASED: 31 May 2007

LON/2007/121