TC09671 - [2025] UKFTT 01261 (TC)

We consider that the three stage Martland approach is appropriate in considering the two matters before the Tribunal, ie whether Mr Hamasala’s appeal against the closure should be admitted out of time and whether permission should be granted for him to notify HMRC of his appeals against the penalties out of time.

The first stage is the length of the delay.

With regard to the closure notice and assessments, an appeal to the Tribunal should have been made to the Tribunal within 30 days of the date of the document in which HMRC gives notice of the conclusion of the review As that document is HMRC’s ‘view of the matter’ letter dated 17 August 2017, Mr Hamasala should have notified his appeal against the closure notice and assessments to the Tribunal by 16 September 2017. However, he did not appeal to the Tribunal until 2 June 2024, some six years and nine months late.

The appeals against the penalties should have been made to HMRC within 30 days of the date they were issued. The earliest of these was issued on 18 February 2015 and the latest 19 February 2019. Therefore the appeal to HMRC against the earliest of the penalties should have been made by 20 March 2015 and the latest by 21 March 2019. However, the appeals against all penalties was not made until 2 June 2024.

Given that a three month delay where there had been a one month time limit was described as “serious and significant” in Romasave (Property Services) Ltd v HMRC [2015] UKUT 254 (TCC) we find that this was also the case in regard to both the appeals against the closure notice and assessments and the appeals against the penalties.

The second Martland stage is to establish the reason for the delay.

In his notice of appeal Mr Hamasala stated that he was not aware of the Tribunal. At the hearing he said that he was out of the country between November 2015 and November 2018. He also said that he relied on his accountant and was told that everything was in hand.

The third of the Martland stages is to undertake a balancing exercise to evaluate all the circumstances of the case. In doing so the starting point, as the Upper Tribunal stated in Martland, is that permission should not be granted unless we are satisfied on balance that it should be.

Having carefully considered all of the circumstances of the case, which includes everything Mr Hamasala told the Tribunal (even if we have not specifically referred to it in this decision) and taken into account the parties’ submissions, we have come to the conclusion that, on balance, given the significant and serious delay, Mr Hamasala should not be granted permission to proceed with his appeal to the Tribunal or to notify HMRC of his appeals against the penalties out of time.

We are afraid that we are unable to accept that he was unaware of the Tribunal. This is because the letters sent to him and/or his accountant from HMRC of 17 August 2017 and 1 May 2019 clearly refer to an appeal to the Tribunal and provide details (ie telephone number and website) of how to obtain further information of how to do so.

Also, although he was not in the UK for a period between 2015 and 2018 he confirmed that he was aware of HMRC’s letters. In any event, even if he had not been aware of the position until he returned to the UK in November 2018, it does not account for his failure to appeal until 2 June 2024.

As for his reliance on his accountant, we consider that Mr Hamasala’s position falls within the general rule in HMRC vKatib in which the Upper Tribunal said, at [54], that

“… failures by a litigant’s adviser should generally be treated as failures by the litigant.”

Mr Hamasala’s complaint is similar to that made by Mr Katib, which the Upper Tribunal recorded at [58] of its decision is that his accountant:

“…was incompetent, did not give proper advice, failed to appeal on time and told Mr Katib that matters were in hand when they were not. In other words, he did not do his job. That core complaint is, unfortunately, not as uncommon as it should be. It may be that the nature of the incompetence is rather more striking, if not spectacular, than one normally sees, but that makes no difference in these circumstances. It cannot be the case that a greater degree of adviser incompetence improves one’s chances of an appeal, either by enabling the client to distance himself from the activity or otherwise.”

Therefore, for the reasons above we dismiss the Application and refuse Mr Hamasala permission to make a late appeal against the closure notice and assessments to the Tribunal and for him to notify his appeals against penalties to HMRC out of time.

We should also add, for the sake of completeness, that we would have come to the same conclusion if we had adopted the Martland approach and given the need to comply with time limits etc greater significance.

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.

Schedule of penalties