[2024] UKUT 00385 (TCC)

The Appellant seeks permission to appeal a decision of the First-tier Tribunal (Tax Chamber) (“the FTT”) released on 26 January 2024 (“the Decision”). The FTT refused permission to appeal in a decision notice released on 28 March 2024. The Appellant renewed his application to the Upper Tribunal and permission was refused on paper on 29 August 2024. The Appellant requested an oral reconsideration of that decision and the hearing took place on 13 November 2024. Mr Newfield attended in person and Mr Max Simpson attended on behalf of HM Revenue & Customs (“HMRC”).

Section 11(1)Tribunals, Courts and Enforcement Act 2007 provides for a right of appeal to the Upper Tribunal “… on any point of law arising from a decision made by the First-tier Tribunal…”. I should only grant permission to appeal on a particular ground if I am satisfied that it is arguable that there is a material error of law in the Decision.

In limited circumstances, a finding of fact by a tribunal can involve an error of law. The circumstances in which such an error of law can arise were summarised by the Upper Tribunal in HM Revenue & Customs v Anna Cook [2021] UKUT 15 (TCC) at [18] and [19]. Essentially there may be an error of law where there was no evidence to support a finding, where the evidence contradicted the finding or where the only reasonable conclusion contradicted the finding. The position is similar in relation to inferences drawn from primary facts and evaluative judgments based on primary facts as summarised in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114] where Lewison LJ also noted that “[T]he trial is not a dress rehearsal. It is the first and last night of the show”.

Given the nature of the ground of appeal for which the Appellant seeks permission, it is necessary to consider the Decision in more detail than usual.