CISR48090 - Register and maintain subcontractor: Appeals against refusal or cancellation of Gross Payment Status: the Tribunal Hearing

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All general matters relating to the tribunal are dealt with in the Appeals, Reviews and Tribunals Guidance at ARTG2400 onwards. The following brings out particular points of relevance against the refusal to grant gross payment status.

If the appellant decides to notify the appeal to the tribunal either without, or after conclusion of, an internal review, HMRC will be notified of this through the HMRC Clearing House and the Appeal Unit will be notified of the appeal to the tribunal and the Tribunal Caseworker will examine the case prior to the Hearing (see ARTG8430). It will be the responsibility of the review office to prepare the appeal brief for the Tribunal Hearing, even where no review was undertaken.

In a company case where an individual director or beneficial shareholder is a consideration in the grounds for refusal the Tribunal Caseworker should write to

• the company secretary, asking that each director (and where the company is close, each beneficial shareholder) be made aware of the appeal and told that their tax affairs may be referred to at the Tribunal Hearing
• each director or beneficial shareholder whose record forms part of the grounds for refusal, stating the part their affairs play in the grounds for refusal
• any agent acting for the relevant director or shareholder stating that you intend to introduce information about their client at the proceedings.

See also the guidance at CISR48120 for appeals involving evidence arising from FA04/S64(5), and the issue of a summons to appear at a Tribunal Hearing to the pertinent directors and shareholders of the company.

When an application for gross payment status is refused, the applicant may appeal to HMRC within 30 days of the notice of refusal (CIS308) and, following that, can either ask for an internal review (see ARTG4000) of the matter, or can notify the appeal to the tribunal (see ARTG2400).

Gross payment status must be refused to an applicant if the available evidence shows that the applicant does not satisfy all the conditions necessary to allow HMRC to grant gross payment status, in particular Table 3 in Regulation 32 SI2005/2045 details the tolerances that HMRC are allowed to apply in allowing gross payment status to continue (see CISR46080).

For example, if the turnover test is failed, the matter is a question of fact and the tribunal will decide whether the evidence is strong enough to support HMRC’s refusal. You should be prepared to explain the operation of the turnover test used and the figures in your case. You should supply the appellant and the tribunal with a copy of the turnover test figures as shown on the application form and your calculation on paper. It is also important to show that all of the gross payment status tests (Business, Turnover and Compliance) are passed or failed where the appeal is for example, about the turnover test only.

The tribunal may make a judgment on ‘any relevant’ decision reached by the decision maker in coming to the conclusion that a refusal was appropriate. This means that they can decide that

• the evidence presented does, or does not, justify the conclusion that the applicant has failed to satisfy a qualifying condition or fulfil a tax obligation.

In the presentation of a case you should draw particular attention to those factors which you consider to be most serious and the main grounds for the decision to refuse gross payment status.