TC09523 - [2025] UKFTT 00544 (TC)

VP provided contradictory evidence for the reasons for the delay; initially stating that this was caused by his relying on his accountants who failed to understand the importance and effects of not complying with the 28 day limit and stating he was not aware of the Unless Order and its significance. His evidence before the tribunal, however, was that the reason for the delay was caused by his difficulty in finding a solicitor to represent him and that he was aware of the Strike Out Order, and the Unless Order, and their significance.

We did not find any evidence to support the first reason and his revised reason was not convincing as not only was a solicitor not required to make an appeal within 28 days, and could have been done by VP himself, but that in the event his accountant made the appeal on 28 March 2024 and so could have done at any time after both VP and RS received the Strike Out Order on 15 January 2024 and discussed it on 24 January 2024.

We were fully cognisant of VP’s health issues but on the evidence before us it was, as suggested by HMRC, sufficiently clear up that VP was well enough to discuss the Strike Out Order on 24 January 2024 and give instructions in relation to other matters, such as his accountant negotiating with HMRC on his behalf, so that it was not credible that he could not have been able to decide whether or not to make an appeal, regardless of whether or not, within the 28 day period, he would have been capable of giving evidence had he been required to do so

Counsel for the Appellant stated that HMRC were aware that the VP disputed certain aspects of the assessment and this was clear from the evidence. This did not, however, mean that VP wish to continue his appeal and we were persuaded by HMRC’s submission that VP did wish to continue the negotiating aspect of the assessment and hoped to do so “to bring matters to a conclusion” which would avoid him having to pay, up-front, substantial legal costs.

The evidence leads us to the conclusion that VP made a conscious decision not to lodge an appeal within the 28 day period in the hope of there being no requirement for an appeal and having to pay the legal costs of preparing for it until HMRC took steps to recover the amount of the assessment.

VP did take steps to find a lawyer and says he contacted the Law Society of Scotland and made enquiries with at least one other firm of solicitors but they were unable to assist and did latterly engage Nisbets Solicitors. He could not, however, recall when he instructed his accountant, RS, to lodge an appeal and could not remember definitively when he contacted the other firms of solicitors to act for him.

There was no evidence that RS had made a mistake by failing to make a late appeal and no evidence was provided by RS or ABC on this point.

The terms of the Strike Out Order were quite clear as was the appeal period of 28 days. Although MBS, VP’s former solicitors, were no longer acting on his behalf at the issuance of the Unless Order and the Strike Out Order, he was professionally represented by an accountant, RS of ABC.

Fundamentally, there is no evidence before us which provides a good reason or reasons for the delay in filing the appeal within the 28 day period.

Accordingly, we are unable to find that the reasons put forward for the delay were good reasons.