18649

Default Surcharge:  Cheque posted timeously; Assertion of Appellant’s cashier credible.  Appeal allowed.

EDINBURGH TRIBUNAL CENTRE

	FOSTER PROPERTIES LIMITED	Appellants

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	       Respondents

			Tribunal:	 (Chairman):  Mrs G Pritchard, BL., MBA., WS

Sitting in Edinburgh on Friday 4 June 2004

for the Appellants		Mrs J Patterson

for the Respondents	Mr A McCue

© CROWN COPYRIGHT 2004.

DECISION

This is an appeal against a Default Surcharge imposed in respect of the quarter 07/03 with a due date of payment of 31/08/03.  The Default Surcharge was imposed at 15% in the sum of £4,035.64.  

Mrs J Patterson appeared on behalf of the Appellants and Mr A McCue for the Respondents.  There was written evidence in the form of a bundle of documents supplied by the Commissioners.  Where reference is made to any page it will be treated as repeated here.  Mrs Patterson explained that the business of running bingo halls which Foster Properties did, was seasonal.  There had been difficulty with 2 previous VAT returns.  For the quarter 01/03 with a due date of payment of 28/02/03 she had posted 2 cheques one on time and one post-dated.  A Default Surcharge of 5% had been applied to the half unpaid on the due date. 

In respect of the period 04/03 she had again posted the cheques timeously but one was again post-dated.  However in that case the full 10% had been applied.  She was so concerned about the 07/03 quarter with a due date of payment of 31/08/03 that she personally ensured that all the information was available and all the funds were in place.  She herself took the return and cheque to the post box and posted it on Thursday 28 August.  She was absolutely certain.  The Tribunal found her whole evidence credible.

After some discussion about the overdraft level and the firm’s ability to pay and her assertion that the 04/03 for half the VAT quarter cheque timeously dated and sent had the full 10% applied, the Commissioners conceded the appeal on the 07/03 quarter.  The appeal therefore succeeds.  No expenses are awarded to or by either party.

MRS G PRITCHARD, BL., MBA., WS

CHAIRMAN

RELEASE: 11/06/2004

EDN/03/114