TC09601 - [2025] UKFTT 00920 (TC)

We have narrated the detail of the correspondence at such length since there was such evident confusion about the issue before the Tribunal and indeed the Tribunal’s jurisdiction.

In oral submissions, although they addressed the three stage approach in Martland, albeit in minimal detail,Freeths continued to focus on the June Letter having been a valid and timeous appeal and advanced arguments on what constitutes a valid appeal.

In closing submissions, it was argued that it was obvious that the appellant had wanted to appeal and the June Letter should be treated as a valid appeal until HMRC had the relevant information to decide the matter. In that regard Mr Hackett again relied upon HMRC’s guidance which was not before us.

Freeths consistently argued that the appellant wished the June Letter to be treated as a valid appeal and that the Tribunal should then direct HMRC to review their decision.

As we intimated at the outset of the hearing, the June Letter is not, and cannot be, an appeal to the Tribunal.

Despite the fact that we had pointed out the relevance of Section 49 TMA, no argument was advanced in that regard by either party. Section 49(1) and (2) read:

“(1)

This section applies in a case where—

(a)

notice of appeal may be given to HMRC, but

(b)

no notice is given before the relevant time limit.

(2)

Notice may be given after the relevant time limit if—

(a)

HMRC agree, or

(b)

where HMRC do not agree, the tribunal gives permission.”

The letter of 18 April 2024 intimated that HMRC did not agree to a late appeal and that is why Officer Love pointed out that the appellant’s only option was to apply to the Tribunal for permission to lodge a late appeal (ie to make an application under Section 49(2)(b) TMA).

The statutory provisions in relation to review are to be found at Section 49A TMA and insofar as relevant that reads:-

“(1)

This section applies if notice of appeal has been given to HMRC.

(2)

In such a case—

(a)

the appellant may notify HMRC that the appellant requires HMRC to review the matter in question (see section 49B),

(b)

HMRC may notify the appellant of an offer to review the matter in question (see section 49C), or

(c)

the appellant may notify the appeal to the tribunal (see section 49D).”

The problem for the appellant is that HMRC have always argued that no appeal of the June 2023 decision had ever been received by HMRC and the first intimation of an appeal was Freeths’ letter of 13 March 2024.

In the absence of the Tribunal giving permission for a late appeal in terms of Section 49(2)(b) TMA no notice of appeal has been “given” to HMRC in terms of Section 49A(1) and therefore the subsequent provisions do not apply.

It does not suffice to assert that there is an appeal, not only when that is disputed, but where the appellant has failed to explain his repeated failure to say to HMRC that he had appealed. There is no proof that the June Letter was sent to HMRC before 13 March 2024. The handwritten note on it is not proof. The appellant has declined to give evidence.

The Tribunal only has jurisdiction to determine whether or not a late appeal should be permitted. The validity, or not, of the June Letter would then be the subject matter of an application by HMRC for strike out, or not.

We do not accept the arguments that the correspondence that followed the letter of 18 April 2024 amounted to appealable decisions and in particular, as argued by Mr Hackett, that the letter of 15 May 2024 was an appealable decision and thus the Notice of Appeal was in fact lodged timeously.

Not only does that fly in the face of the terms of the Application but it is simply wrong. We agree with Ms Man that the fact that HMRC, as a public body, continued to answer correspondence for some time after issuing a decision on the late appeal does not extend the statutory deadlines.