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THE LAW
THE LAW
The Rules
The parties have agreed that the relevant legislation is set out in the First-tier Tribunal (Tax Chamber) Rules 2009 (as amended) (“the Rules” each a “Rule”) and in particular Rule 2 and Rule 17.
Rule 2 provides:
Overriding objective and parties' obligation to co-operate with the tribunal
The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
Dealing with a case fairly and justly includes—
dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
avoiding unnecessary formality and seeking flexibility in the proceedings;
ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
using any special expertise of the Tribunal effectively; and
avoiding delay, so far as compatible with proper consideration of the issues.
The Tribunal must seek to give effect to the overriding objective when it—
exercises any power under these Rules; or
interprets any rule or practice direction.
Parties must—
help the Tribunal to further the overriding objective; and
co-operate with the Tribunal generally.
Rule 17 provides:
Withdrawal
Subject to any provision in an enactment relating to withdrawal or settlement of particular proceedings, a party may give notice to the Tribunal of the withdrawal of the case made by it in the Tribunal proceedings, or any part of that case—
by sending or delivering to the Tribunal a written notice of withdrawal; or
orally at a hearing.
The Tribunal must notify each party in writing of its receipt of a withdrawal under this rule.
A party who has withdrawn their case may apply to the Tribunal for the case to be reinstated.
An application under paragraph (3) must be made in writing and be received by the Tribunal within 28 days after—
the date that the Tribunal received the notice under paragraph (1)(a); or
the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).
- Heading
- INTRODUCTION
- THE LAW
- Pierhead
- THE EVIDENCE AND THE FACTS
- Mr Borthwick’s written evidence
- There would also be reputational consequences if the assessment and penalty were not successfully appealed He thought LP’s evidence on the Monday “went well”
- He asked her to make the reinstatement application which she did Mr Borthwick’s oral evidence
- The reliability of Mr Bortwick’s evidence
- THE POST HEARING CONCESSION
- DISCUSSION
- When exercising discretion under Rule 2, we should consider the principle set out in Pierhead and in particular whether HMRC would be prejudiced by the reinstatement, what loss there would be to the a
- Prejudice to HMRC
- Loss to the appellant
- Merits
- The appellant’s grounds of appeal and skeleton argument make out a strong prima facie case Mr Borthwick’s evidence was that he was advised by counsel that he had a strong (60:40) case
- The overall balancing exercise When exercising our discretion under Rule 2, an important consideration is the reason why the appellant withdrew its appeal
- The balance of prejudice weighs heavily in dismissing the application to reinstate The FTT’s decision in Rolls Group & Others v HMRC [2015] UKFTT 0404 (“ Rolls ”) citing Pierhead is authority for a number of propositions. Reinstatement is a matter of
- She couched her submissions for opposing the application under a number of headings as set out below No automatic right to reinstatement
- No good reasons
- And the real reason for reinstatement is that he has had an opinion from Dr Willets that the company has a better chance in the appeal than it had been given following those discussions with counsel
- Prejudice to the parties
- Merits
- The overriding objective
- Our view
- The factors
- The balancing exercise
- Conclusions