TC09587 - [2025] UKFTT 00875 (TC)

The Notice of Appeal ought to have been filed within 30 days of the issue of the Respondents’ decision upon review dated 17 December 2020 (Section 83G VATA) The Respondents stated in their decision letter that they would not object to appeals lodged within 3 months of the 30-day appeal period. The Notice of Appeal was generated on 15 January 2024, which was more than 2 ½ years out of time of both the statutory time limit and the Respondents’ extended discretionary time limit. I consider that to be both serious and significant. The Appellant also concedes that, in the Respondents’ letter dated 15 September 2022, HMRC Debt Enforcement made another suggestion that the Appellant appeal to the Tribunal; the Appellant waited over a year after that suggestion before making an appeal, a period that I find would be both serious and significant by itself.

Moving to the second stage, I am not persuaded that there was a good reason for the delay.

The explanation put forward in the Notice of Appeal that the delay was due to “ongoing issues caused during the pandemic” is inadequate, with no explanation as to what the “issues” were or why they caused delay. The Appellant was invited to expand upon those reasons by way of filing amended grounds, but, if anything, the amended grounds stepped back from the original grounds by stating only that the pandemic “may [my emphasis] have slowed progress”. Again, no proper or cogent explanation was forthcoming in that response. In submissions, the Appellant referred only to delays in 2020, with no further explanation as to how the timing of the appeal was affected.

In submissions, Mr Wine pressed the argument that the review decision under appeal was invalid and stated that the only reason that the appeal was brought was the invitation from the Respondents.

The validity of the review decision is a matter that goes to the merits of the appeal, to be considered at the third stage. I do not find that Appellant’s assertion that that the reason that the appeal was brought at all was due the Respondents’ invitation, is a good reason for bringing the appeal late, not least because the Appellant was reminded of his appeal rights at many stages, including in the original decision and the review decision letters.

In my consideration of the third stage of the balancing exercise, I take into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected. In respect of the prejudice to both parties, I have considered the prejudice to the Appellant in not being permitted to pursue his appeal. As set out in Martland at [46], the Tribunal should consider the arguments of the case in outline so it can form a general impression of its strength or weakness to weigh in the balance.

The Appellant’s grounds of appeal, and the replies to the request for amended grounds of appeal, do not set out any substantive grounds over and above disagreeing with the Respondent’s decision. In correspondence, the Appellant challenged the validity of the review decision for reason of late notification, and that argument was again raised in oral submissions. Considering sections 83F and 98 VATA and section 7 of The Interpretation Act 1978, it is clearly arguable that the review decision was notified late. The case of Dennison to which I was referred, does not assist me any further.

However, the consideration of the merits is a matter that goes to the prejudice to the parties. In the event of a successful appeal of the review decision, there is a strong argument that the default position would be that the original decision (that reached the same conclusion) would be upheld (s. 83F (8) VATA). If that were the case, even if the Appellant were to succeed in challenging the validity of the review decision, he would be no better off. Conversely, the Appellant’s submission that the default position would be that there was no valid assessment was not supported by any further reasoning, and I find that it is no more than arguable.

The Respondents submit that should the Application be allowed, they would be prejudiced in that they will have to divert resources to defend an appeal which they were entitled to consider closed, especially given the significant length of the delay. I consider that the prejudice to HMRC is more limited as a factor to weigh in the balance as compared to that which the Appellant will suffer by loss of the chance to argue his appeal.

Taking all of these points into account, I find that the prejudice to the Appellant in not being permitted to continue his appeal does not outweigh the significance and seriousness of the delay in bringing it.

I do not find that the Appellant’s request that the Respondents do not object to any late appeal, is material. This request was made in October 2023 when considerable time had already elapsed, and in any event, the Respondents did not agree to the request.

Stepping back and looking at all the circumstances, I conclude that the application to permit the late appeal should be refused.