TC09670 - [2025] UKFTT 01260 (TC)

dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

avoiding unnecessary formality and seeking flexibility in the proceedings;

ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

using any special expertise of the Tribunal effectively; and

avoiding delay, so far as compatible with proper consideration of the issues.”

Rule 20 of the FTT Rules states:

“20.—(1) A person making or notifying an appeal to the Tribunal under any enactment must start proceedings by sending or delivering a notice of appeal to the Tribunal.

(2)

The notice of appeal must include—

(a)

the name and address of the appellant;

(b)

the name and address of the appellant’s representative (if any);

(c)

an address where documents for the appellant may be sent or delivered;

(d)

details of the decision appealed against;

(e)

the result the appellant is seeking; and

(f)

the grounds for making the appeal.

(3)

The appellant must provide with the notice of appeal a copy of any written record of any decision appealed against, and any statement of reasons for that decision, that the appellant has or can reasonably obtain.

(4)

If the notice of appeal is provided after the end of any period specified in an enactment referred to in paragraph (1) but the enactment provides that an appeal may be made or notified after that period with the permission of the Tribunal—

(a)

the notice of appeal must include a request for such permission and the reason why the notice of appeal was not provided in time; and

(b)

unless the Tribunal gives such permission, the Tribunal must not admit the appeal.

(5)

When the Tribunal receives the notice of appeal it must give notice of the proceedings to the respondent.’

FTT Rules 20(1) and (2) refer specifically to an NOA, as do r.20(4) and r.20(5). Rule 20(3) refers to a different document and recognises that if an Appellant cannot reasonably obtain a written record of any decision, then that would not invalidate any NOA.

There may be any number of reasons why that might be the case. In such a case, if the Tribunal automatically rejected the NOA as not being accompanied by a copy of a written record or statement of reasons it would be wrong to do so.

Mr. Brown submitted that failure to include a written record or a statement of reasons cannot alone simply invalidate a NOA that is otherwise compliant with r.20(2) of the FTT Rules. If that was to be the effect of r.20(4) the rule both could and should have said so. Further, such an interpretation gives effect to the over-riding objective of dealing with cases fairly and justly.

Mr. Vallis submitted that if r.20(3) is not met there is no valid appeal, because it is a requirement in r.20 which itself builds on para.5 of Sch.5 of the Tribunals Courts and Enforcement Act 2007 which provides the statutory foundation for the FTT Rules.

We prefer Mr. Brown’s submissions. Had r.20(4) been intended to say that where a copy of the written record appealed against and any statement of reasons that an Appellant had, or could reasonably obtain was provided after a statutory time limit, and that permission was required for the appeal to be admitted, it both could, and should, have said so. Instead, r.20 of the FTT Rules draw a distinction between the NOA itself, and the documents referred to in r.20(3).

We therefore conclude that where a NOA is provided within a statutory time limit, but the document(s) in r.20(3) of the FTT Rules are not, that the appeal is not late and does not require permission to be admitted. The Tribunal may well refuse to allow an admitted appeal to progress further until any default in respect of r.20(3) is remedied, but that is a separate issue

The second issue is whether the Tribunal has the power to waive the requirement in r.20(3) of the FTT Rules with the effect that the appeal is not late.

Rule 7 of the FTT Rules states, in as far as is relevant:

“Failure to comply with rules etc.

7.—(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.

(2)

If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—

(a)

waiving the requirement;

(b)

requiring the failure to be remedied;

(c)

exercising its power under rule 8 (striking out a party’s case);

(d)

restricting a party’s participation in proceedings; or

(e)

exercising its power under paragraph (3).

Mr. Vallis submits that r.7(1) of the FTT Rules does not apply to defective NOAs because absent a valid NOA there are no proceedings to be rendered void. We do not need to decide that point.

We were concerned with whether r.7(2) of the FTT Rules permitted us to waive a requirement in r.20(2) or 20(3) of the FTT Rules. Mr. Vallis submitted that r.7(2) of the FTT Rules did not, because it was only concerned with proceedings that had already been validly commenced.

We do not accept that interpretation. Rule 7(2) of the FTT Rules does not state that it applies only to certain of the FTT Rules, or that it does not apply to r.20. Had that been the case we would have expected the Rule to say so. Further, had there been no discretion to provide a just outcome in cases where r.20(2) or (3) had not been complied with that would tend to set up a rigid and draconian regime when a hallmark of the FTT’s overriding objective is to deal with cases fairly and justly through avoiding unnecessary formality and seeking flexibility in the proceedings. We therefore conclude that where a NOA fails to comply with an aspect of r.20(2) or r.20(3) of the FTT Rules the Tribunal has a discretion to waive the initial requirement and require the defect to be remedied. We note that, having analysed the relevant authorities, Judge Perez came to the same conclusion in P.R.B. Trading Ltd v HMRC [2023] UKFTT 00421 (TC), at [27] – [37], and [51].

In this case, we concluded that we would therefore have (a) had the discretion, and (b) exercised it in the Appellant’s favour because this was a single error in the context of an otherwise compliant NOA.

Had the single defect in the NOA been dealt with in that manner this application would not have been necessary.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.