Larry Trachtenberg v The Commissioners for HMRC

Decision date: 9 May 2024

Neutral citation: [2024] UKFTT 376 (TC)

Overall AI summary confidence: high

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Short overview

This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.

AI confidence in this short overview: high

This appeal concerned HMRC assessments for unauthorised payments from a SIPP in 2006 and 2009 and a refusal to discharge a 15% unauthorised payments surcharge. The First-tier Tribunal held the payments were unauthorised, the resulting fixed-rate charges under ss208–209 FA 2004 are income tax charges recoverable by assessment under s29 TMA 1970, and that the appellant acted deliberately in submitting and sustaining inaccurate returns so extended time limits applied. The assessments and refusal to discharge the surcharge were upheld and the appeal dismissed.

Ratio decidendi

This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.

AI confidence in this ratio decidendi summary: medium

The Tribunal treated the ss208–209 FA 2004 unauthorised payments charge as an income tax charge "for" the relevant tax year such that s29 TMA 1970 assessment powers can be used to recover it; and it applied the concept of "deliberate" behaviour to mean intentional creation or submission of inaccurate documents/returns with the intention that HMRC rely on them, justifying the use of extended time limits and refusal to discharge the surcharge.

Obiter dicta

This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.

AI confidence in this obiter dicta summary: medium

The judgment observed that s255 FA 2004 (regulatory power) being permissive does not prevent existing assessment powers where applicable, and that penalties/interest may continue to accrue while an application to discharge a surcharge is pending because the charge arises on the unauthorised payment and persists until relief is granted.