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Procedure.Tax
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N10: Parties' conduct and attendance
Tribunal and taxpayer entitled to expect HMRC to know its business
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“The Tribunal and taxpayers are entitled to expect HMRC to know its business and not to make careless errors in making statements before the Tribunal.” (Scofield v. HMRC [2012] UKFTT 673 (TC), §29)
FTT can refer Chartered Tax Adviser to CIOT (but not ICAEW)
"[65] Ms Anderson and Mr Henry asked if the Tribunal could take any action against Mr Wright-Anderson. It is true that the Tribunal can refer cases relating to tax advisers to the Tax Disciplinary Board of the Chartered Institute of Taxation, but Mr Wright-Anderson is not a Chartered Tax Adviser. He is a member of the Association of Chartered Certified Accountants (“ACCA”), but there appears to be no equivalent route so as to allow the Tribunal to make a reference or report directly to that body.
[66] Complaints about poor advice given by an ACCA member must be made first to the person in question (here Mr Wright-Anderson) and can then be referred to the ACCA itself. But it is Mr Henry who would need to take that action; the Tribunal cannot step into his shoes, or act on his behalf. He may find some assistance at https://www.accaglobal.com/gb/en/footertoolbar/contact-us/make-a-complaint-about-an-acca-member.html and he may wish to attach a copy of this decision notice to his letter(s)." (Henry v. HMRC [2024] UKFTT 237 (TC), Judge Redston)
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Attendance by telephone
No general right
“Pursuant to the above provisions, the Tribunal does on occasion permit telephone attendance at a hearing, but that is dependent on the circumstances of the case, including the nature of the hearing itself; there is nothing in the procedure rules to suggest there is a general right for a party, a witness or an advocate to attend by telephone (or indeed by any other form of remote communication); indeed Rule 11(5) is drafted on the tacit assumption that any representative or assistant who assists in presenting a party’s case at a hearing will accompany that party.” (Cresswell v. HMRC [2017] UKFTT 481 (TC), §23, Judge Poole).
Depends upon the suitability of the hearing for telephone attendance
“It is necessary to assess the suitability of the particular hearing for the proposed attendance as well as taking account of the wishes of the parties and the overall circumstances of the request.” (Cresswell v. HMRC [2017] UKFTT 481 (TC), §24).
Refused for penalty appeal involving serious allegations despite advocate having medical condition preventing travel
“The present case is a penalty appeal in respect of a large amount, partly involving allegations of deliberate inaccuracy, listed to last for two days. It is to be expected that there will be significant cross examination, both of the appellant and of the relevant HMRC witness(es). The hearing will not be straightforward.” (Cresswell v. HMRC [2017] UKFTT 481 (TC), §26, Judge Poole).
Excluding persons from the hearing
“Subject to rules 19 (proceedings without notice to a respondent) and 32(4) (exclusion from a hearing), each party to proceedings is entitled to attend a hearing.” (FTT Rules, r.30).
“(4) The Tribunal may give a direction excluding from any hearing, or part of it--
(a) any person whose conduct the Tribunal considers is disrupting or is likely to disrupt the hearing;
(b) any person whose presence the Tribunal considers is likely to prevent another person from giving evidence or making submissions freely;
(c) any person where the purpose of the hearing would be defeated by the attendance of that person; or
(d) a person under the age of eighteen years.” (FTT Rules, r.32(4)).
Failure of a party to attend
Tribunal may go ahead anyway
“If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.” (FTT Rules r.33)
Estate becomes the party on the death of the original taxpayer
“My understanding of the legal position is that on Mr Wood’s death in May 2013 the right of litigation survived for the benefit of his estate and passed to his personal representative, being his widow: s 1(1) Law Reform (Miscellaneous Provisions) Act 1934. Thus the present parties for the purpose of Rule 33 are Mrs Wood (as personal representative of her late husband) and HMRC. Mrs Wood is and will be entitled to attend any hearing (Rule 30). Thus the fact of Mr Wood’s death does not of itself trigger Rule 33, and I do not need to consider it further.” (Wood v. HMRC [2015] UKFTT 282 (TC), §90).
Absence is a result of party’s own choice and causes no prejudice
“We considered that her failure to attend was her own choice. We had found that it was not shown that she was too ill to attend. She was clearly well aware the hearing was taking place. Moreover, we did not consider her failure to attend was likely to prejudice her case. All the points she wished to raise appeared to be covered in her letters and had been listed by her daughter when asking for the postponement…We considered that it would be in the interests of justice to proceed in her absence and in the absence of representation.” (Banerjee v. HMRC [2015] UKFTT 85 (TC), §67 - 69).