Self assessment ― reasonable excuse for late filing

Produced by Tolley

The following Personal Tax guidance note Produced by Tolley provides comprehensive and up to date tax information covering:

  • Self assessment ― reasonable excuse for late filing
  • Burden of proof in reasonable excuse cases
  • Late filing of the self assessment tax return
  • What is not a reasonable excuse?
  • What might be a reasonable excuse?
  • When does a reasonable excuse end?
  • Case law
  • How to appeal a self assessment late filing penalty
  • Late filing penalties for 2019/20 tax returns ― bulk appeals

Self assessment ― reasonable excuse for late filing

If a penalty has been correctly charged by HMRC, the taxpayer can only appeal if they believe they have a ‘reasonable excuse’ for failing to comply with the legislation.

The term ‘reasonable excuse’ is not defined in the legislation and therefore the meaning is continually being reassessed by the courts ‘in light of all the circumstances of the particular case’.

HMRC considers a reasonable excuse to be ‘something that stops a person from meeting a tax obligation despite them having taken reasonable care to meet that obligation’. In order to assess whether the excuse is reasonable, HMRC assesses ‘the experience and relevant attributes of the taxpayer’ when deciding whether the taxpayer has taken reasonable care to meet the obligation.

Therefore, a reasonable excuse often arises where there is an unexpected or unusual event (or a combination of such events) that is either unforeseeable or beyond the taxpayer’s control.

Often if the taxpayer could reasonably have foreseen the event, whether or not it is within their control, HMRC will expect the person to take steps to meet their obligations.

This guidance note considers the concept of reasonable excuse. For commentary on how to build a case for reasonable excuse, see the Winning reasonable excuse cases guidance note.

Burden of proof in reasonable excuse cases

In terms of proving a reasonable excuse, the European Court of Human Rights judgment in Jussila v Finland is interesting as it turns the burden of proof on its head. Normally, the burden of proof in tax cases rests with the taxpayer. However, the Jussila case makes it clear that penalties are ‘criminal charges’, meaning that, in penalty appeal cases, the burden of proof rests with HMRC. However, as decided in Khawaja, the civil standard of proof applies, not the criminal standard. This means that HMRC must prove ‘on the balance of probabilities’ that a penalty is due. The impact of the Jussila case on the penalties regime is

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