THE COMMISSIONERS of INLAND REVENUE Respondents

SPC00442

Procedure; Special Commissioners (Jurisdiction and Procedure) Regulations 1994, Rule 19; failure of appellants to appear or be represented; application under Rule 19 dismissed

THE SPECIAL COMMISSIONERS

DR A G SIWEK & SIWEK LIMITEDAppellants

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THE COMMISSIONERS OF INLAND REVENUE Respondents

Special Commissioner:J. GORDON REID Q.C., F.C.I.Arb.

Sitting in Edinburgh on Thursday 28th October 2004

for the Appellants No appearance

for the Respondents Brendan Hone, HMIT, Appeals Unit Glasgow

DECISION

In response to the Decision released on 8/9/04 in favour of the Respondents (the “Revenue”), following a substantive Hearing on 27/7/04, at which neither appellant appeared nor was represented, the Appellants made an application under Rule 19 of the Special Commissioners (Jurisdiction and Procedure) Regulations 1994. The effect of such an application, if granted, would be to set aside the Decision and require the issues canvassed therein to be heard, argued and decided afresh.

Such an application may be granted if I am satisfied that there is good and sufficient reason for the failure of the appellants to appear or be represented. The circumstances giving rise to my hearing the appeals in the absence of the appellants are set forth in paragraphs 2 and 4-6 of the Decision dated 8/9/04.

On 1 October 2004, a procedural Direction was issued intimating that the Rule 19 Application would be heard at the Edinburgh Tribunal Centre on 28/10/04 at 10am. That Order made further provision in relation to the lodging of documents. By letter dated 15/10/04, bearing an address in Aberdeen (which may be an accommodation address), Dr Siwek correctly referred to the date of the Hearing as being 28/10/04 and stated that he was enclosing documents on which he intended to rely at the Hearing. In fact, he enclosed (i) two lists of documents, one on his own behalf and one for Siwek Ltd, and (ii) some, but not all of the documents referred to in the lists. He enclosed (a) a photocopy extract birth certificate of Elizabeth Stephanie Siwek {date of birth 14/4/01}, (b) a photocopy of a photograph of two young children, one of whom was said to be Elizabeth, (c) a photocopy from a page of what bears to be Dr Siwek’s Passport, (d) a transit visa valid from 23/7/04 to 22/8/04), (e) a photocopy of what bears to be a Migration Card bearing dates 27/7/04 to 22/8/04. The lists, under reference to the photograph, refer to Elizabeth suffering from middle ear illness.

By 10am on 28/10/04, Dr Siwek had not appeared. There was no one present to represent either of the Appellants. I caused enquiries to be made to ascertain whether the Appellants or either of them (in practical terms, Dr Siwek) had contacted the Office of the Special Commissioners in London to indicate that he had been delayed or was unable to attend. There was no such contact as at 10.30am. Nor had the Revenue been contacted by Dr Siwek to indicate any difficulty about attending the Hearing. As at the date of writing this Decision, there has been no communication from Dr Siwek.

At 10.30am, therefore, I heard Mr Brendan Hone, the Revenue’s representative, who invited me to refuse the Application. In the circumstances, I cannot be satisfied that there is a good and sufficient reason for the Appellants’ failure to appear or be represented at the Hearing on 27/7/04. The information before me is wholly inadequate to support the view that the illness of Dr Siwek’s child justified his absence at the July Hearing or justified the absence of any representation on behalf of the Appellants. While it now appears that Dr Siwek’s child may be of tender years rather than an adult, that is not a good and sufficient reason. It would have been relatively easy to provide a credible explanation (if there were a proper basis for it), sufficiently specific and, if appropriate, supported by medical and/or other evidence, to enable me to conclude that Dr Siwek’s absence in July was for a good and sufficient reason.

In the foregoing circumstances, I refuse to review, set aside or vary the final determination contained in the Decision dated 8/9/04. The Application under Rule 19 is therefore dismissed.

Finally, Mr Hone reminded me that, in the Decision dated 8/9/04, I had reserved the question of expenses. Mr Hone did not seek expenses either in relation to the July 2004 Hearing or the Rule 19 Application. In relation to the Decision and the Rule 19 Application, therefore, I find no expenses due to or by either party.

J GORDON REID Q.C., F.C.I.Arb

SPECIAL COMMISSIONER

Release Date: 10 November 2004

SC 3077-78/2003