Waring Investments Ltd v Commissioners for Her Majesty's Revenue and Customs

Facts

The appellant, Waring Investments Ltd, was an employer which paid employees and accounted for PAYE and National Insurance to HMRC. It was accordingly required by regulation 73 of the Income Tax (Pay As You Earn) Regulations 2003 to deliver a P35 return before 20 May following the end of each fiscal year, and, following the Income Tax (Pay As You Earn) (Amendment No.2) Regulations 2009, to do so online for 2009-10 onwards. Sir Holburt Waring, a director of the appellant, had an interest also in SRM Plastics Ltd, and asked his son, Michael Waring, an information technology consultant, to make both companies' filings. The SRM return was submitted online on time on 15 April 2010, but the attempt for the appellant went awry: after registering with the government gateway and obtaining user IDs, Mr Waring made unsuccessful attempts to enrol for the PAYE Employers' Service on 30 April, 21 May, 4 June and 25 June 2010, sometimes being refused and sometimes told to try again later. He eventually obtained a user ID on 12 July, enrolled on 20 July, was sent a code on 22 July, and submitted the P35 on 2 August 2010. HMRC issued a penalty determination on 5 August 2010 for £300, and the company appealed to the First-tier Tribunal on the basis that it had tried unsuccessfully to file online.