TC09602 - [2025] UKFTT 00930 (TC)

Meanwhile, in September 2022 Mr Gill was diagnosed with anxiety and depression. He also suffered from Type 2 diabetes and in 2015 had a transient ischemic attack. In October 2022, he was diagnosed with autistic spectrum disorder.

On 17 January 2023, Mr Gill filed his 2021-22 SA return which stated that he was working on a self-employed basis for (a) Gravesend Construction with turnover of £52,519, and (b) for St Lewis Design, with turnover of £14,000. Mr Gill later confirmed to Officer King that he had been working as a consultant to both companies. His SA return contains boxes which ask for details of an agent; these were left blank, and I make the reasonable inference that Mr Gill did not use an agent when completing the return.

During February 2023, Mr Gill’s mother passed away; she had lived with Mr Gill for 62 yearsand he was “utterly devastated” by her death.

On 10 February 2023, Ms Sharron Hobbs of HMRC’s Solicitor’s Office emailed the Tribunal and TMS to notify them that she was acting for HMRC in relation to Mr Gill’s appeal.

On 17 February 2023, Mr Gill provided HMRC with authority to communicate with Ms Gill on “all matters”. On 1 March 2023, Ms Gill called Officer Trigg to confirm that Mr Gill had made an appeal to the Tribunal; she explained that Mr Gill’s mother had died; asked for any hearing to be adjourned in consequence and also asked about the possibility of a payment plan were he to lose the appeal.

As at the date of that call, Officer Trigg had not been informed about the appeal, and on 7 March 2023, she emailed Ms Gill, asking her to provide the Tribunal reference number and any related information. Ms Gill contacted Mr Monk, who provided her with the reference number and he also said:

“HMRC currently has 60 days from 4th February 2023 to provide its Statement of Case and we will be sure to inform you as soon as we receive this. I look forward to speaking with you in due course.”

On 8 March 2023, Ms Gill forwarded that information to Officer Trigg. On 4 April 2023, HMRC filed their Statement of Case with the Tribunal, and copied TMS. Ms Hobbs then tried to contact TMS by phone to discuss draft directions, but received no response. On 6 April 2023 she sent TMS an email in which she stated that she had tried to contact the firm by phone but it had not been answered. She then continued:

“As a starting point I propose that we agree to dispense with the requirement to serve a List of Documents [“LoDs”], and that by no later than 5 July 2023 the Respondents shall serve all witness evidence. I look forward to hearing from you soon regarding the above proposal, and liaising with you to see if we can agree further directions.”

There was no response from TMS. On 25 April 2023, Ms Hobbs emailed again, saying:

“I have tried over a few weeks to contact you by telephone, email and voicemail, to see if we can agree directions in this case, but there has been no response. I have drafted the attached proposed directions. Please let me know your views on the proposed directions. If I have not heard from you by 5pm on Friday 26th April 2023, I will apply to the Tribunal by email (and copy you in), and invite them to make the attached directions. I look forward to hearing from you shortly.”

There was again no response from TMS. On 28 April 2023, Ms Hobbs applied to the Tribunal to dispense with the standard direction for LoDs, saying that she had contacted TMS “for their views regarding the application, but no response has been received from them”, and copying TMS.

On 6 June 2023, the Tribunal agreed to dispense with the LoDs, and issued directions for the appeal to proceed to a hearing. These directions included the following:

TMS did not copy those directions to Mr Gill. On 3 August 2023, Mr George Azzopardi of HMRC’s Solicitor’s Office emailed TMS inviting that firm to register with HMRC’s Secure Data Exchange Service (“SDES”). No reply was received. Mr Azzopardi followed up with a second email on 16 August 2023, saying that TMS needed to register with the SDES before it could be used to serve HMRC’s witness evidence.

In the days leading up to 18 August 2023, Ms Hobbs tried again to contact TMS by phone to discuss amending HMRC’s Statement of Case, but the phone was not answered, and the voicemail message said that it was not possible to leave messages.

On 18 August 2023, HMRC applied to the Tribunal to amend their Statement of Case, and on the same day, filed and served their witness evidence in compliance with the Tribunal’s directions. TMS was copied on the application and the witness evidence.

TMS were due to file and serve witness evidence on behalf of Mr Gill by 15 September 2023, but no witness evidence was filed or served. On 29 September 2023, Ms Hobbs emailed the Tribunal, copying TMS, saying:

“The Respondents complied with direction 1 regarding ‘Respondents Witness Statements’ on 18 August 2023.

The Appellant has not complied with direction 2 regarding ‘Appellant’s Witness Statements’, which was due to be complied with by 15 September 2023.

As a result of the Appellant’s non-compliance with direction 2, the Respondents are not currently in a position to comply with direction 3 regarding ‘Listing Information’ which was due to be complied with today, 29 September 2023.

The Appellant’s Representative has not responded to previous correspondence sent to them by the Respondents regarding proposed applications and service of the Respondents’ evidence.

The Respondents await further directions from the Tribunal.”

On 6 October 2023, the Tribunal sent a letter addressed to Mr Monk at TMS, which said (my emphasis):

“The Tribunal refers to the Directions sent on 6 June 2023, a copy of which is enclosed.

The Tribunal does not appear to have received notice that your witness statement(s) were served in compliance with Direction 2, which were due on 15 September 2023.

It is important that each party to an appeal discloses in advance to the other party the evidence of the witnesses on which they rely, so that both parties can properly prepare for the hearing. If, therefore, you do not comply within 14 days with the direction to provide statements by your witnesses, a Judge may issue a direction which may lead to the striking out of the appeal on the basis that your failure to disclose the evidence on which you rely is unfair to the other party.

Please remember that where an appellant intends to rely on his or her own evidence, a witness statement by the appellant must still be provided.

You should now immediately provide your witness statement(s) (with an application for the witness statements to be admitted out of time) or tell the Tribunal (if correct) that you are not calling any witnesses to give evidence.”

Meanwhile, on 2 October 2023, four days before that chaser letter was sent to TMS, Mr Gill was taken to hospital by emergency ambulance and diagnosed with end stage renal failure and Covid. On 6 October 2023, he was discharged to his home with antibiotics.

On 19 October 2023, Mr Gill was readmitted to hospital, where a scan confirmed chronic kidney disease and he was given dialysis. He was discharged on 24 October 2023 with a requirement to receive dialysis three times a week.

During October, Mrs Gill and Ms Gill visited Mr Gill in hospital, and on the way home their car was in a collision with a speeding vehicle and Mrs Gill was seriously hurt.

On 16 November 2023, Ms Hobbs emailed the Tribunal, copying TMS, to say that there had still been no compliance by the Appellant with the direction to file witness statements. On 22 November 2023, Judge Bailey issued an “Unless Order” which was sent to TMS and copied to HMRC. It read (emphasis in original):

“The Appellant having failed to comply with the Directions issued on 6 June 2023 to provide his witness statements by the due dates or at all and having failed to reply to the letter from the Tribunal dated 6 October 2023 within the times stipulated therein or at all the Tribunal DIRECTS that:

UNLESS the Appellant no later than 5pm on 06 December 2023

1.

confirms in writing to the Tribunal an intention to proceed with the appeal, and

2.

complies with the Directions issued on 6 June 2023 to provide his witness statements and, at the same time, makes an application to be permitted to comply out of time,

then these proceedings WILL be STRUCK OUT without further reference to the parties.”

TMS did not copy the Unless Order, or the warning letter of 6 October 2023, to Mr Gill.

In December 2023, Mr Gill was diagnosed with heart failure and was reviewed by a cardiologist. At or around this time, his dialysis was increased to four times a week.

There was no compliance with the Unless Order, and in accordance with its terms, Mr Gill’s appeal was automatically struck out on 7 December 2023.

On 5 January 2024, Mr Gill filed his SA tax return for the year 2022-23. This declared self-employment income of £48,365 from “various cash jobs”. As in the previous year, the boxes which asked for details of an agent were left blank, and I make the reasonable inference that he did not use an agent when completing this return.

On 8 January 2024, the Tribunal wrote to Mr Monk at TMS informing him that the appeal had been struck out. The text of the letter says:

“You do not appear to have complied with the Directions (copy enclosed) and therefore, in accordance with these Directions, and rule 8(1) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, this appeal was automatically struck out on the day after the date specified in these directions.

You have the right to apply for the proceedings to be reinstated but such an application must be made in writing and received by the Tribunal within 28 days from the date of this letter. Such an application should be supported by reasons, including an explanation of why the direction was not complied with.”

TMS did not inform Mr Gill of the strike out. On 7 February 2024, Officer King wrote to Mr Gill, saying that as his appeal had been struck out, he was now required to pay HMRC £1,825,818.08, being the amount of the PLN.

That letter arrived on Saturday 10 February 2024. Mr Gill tried repeatedly to contact TMS but could not get a response. He called Officer King three times on Monday morning (during a dialysis session) and finally got through at 9.10am. He told Officer King that he had paid TMS a lump sum “at the beginning” followed by weekly payments which came to an end in August 2023, and that he had not heard from TMS since then. Mr Gill said he had no assets and would be unable to pay the PLN, and would face bankruptcy. He called Officer King again at 9.37am to say he had called TMS “100 times and has not been able to contact them”.

At 10.46am the same day, Ms Gill emailed Officer Trigg, saying:

“We received a letter dated 7th February requesting payment be made immediately. On the letter it stated the appeal had been struck out because directions of 6/6/2023 and 22/11/2023 had not been complied with. However
we were quite shocked seeing this letter as we had not received anything and nothing from those dates. We were still waiting for the appeal date? Also we have tried to contact TM Sterling and unfortunately we have not been able to get through to them. We are not sure if the letters were sent to them but normally my dad does receive copies of everything? We would be very grateful if you could kindly call me on [number] at your earliest convenience, please. As we really did want the chance for an independent review and chance to appeal.”

The following day at 13.04 Mr Gill and Ms Gill called Officer King to say they had spoken to TMS and would be lodging a reinstatement application. Ms Gill said that “there had been a breakdown in communication” with TMS and as they had not heard from that firm, they had assumed that “due to Covid there was a backlog” in arranging the hearing. On the same day, 13 February 2024, TMS submitted the reinstatement application.

On 20 March 2023, HMRC objected to the reinstatement of Mr Gill’s appeal. On 28 March 2024, the Tribunal issued directions for the hearing of the reinstatement application. Direction 1(3) was that, by 25 April 2024, “both parties shall send or deliver to the other party and the Tribunal the witness statement of any person on whose evidence that party intends to rely upon at the hearing of this appeal”. HMRC filed the witness statements of Officers Trigg and King in compliance with that direction. No evidence was filed on behalf of Mr Gill.