UT (Tax & Chancery) UT/2022/000155 - [2025] UKUT 00003 (TCC)

We have summarised the essential argument made on behalf of the Appellant at the outset of this decision. Professor Zarkov submitted that the Appellant did not have a valid representative appointed at the relevant time in July 2016 upon whom the notice that the appeal had been allocated as a complex case could be served by the FTT. This is because the representative had sent to the FTT the notice of acting by email on 11 March 2016 and not the Appellant in breach of Rule 11(2). He contended that the Tribunal was not entitled to treat the representative as duly authorised or appointed so as to receive notification of the allocation decision and no notice of the allocation decision was given to the Appellant as taxpayer. Therefore, he argued that, applying Rules 11(2) and 10(1)(c), the Appellant had not received notification of the allocation of the appeal to the complex category nor the requirement to request any opt out of the costs shifting regime within 28 days of receiving notice such that time had not begun to run. The result was that HMRC was not entitled to apply for costs and the FTT erred as it had no power to order the Appellant to pay HMRC’s costs of the proceedings pursuant to Rule 10(1)(c) as it purported to do.

He submitted that if a representative is not a legal one, the party itself and not the representative must send or deliver to the Tribunal the notice of the representative's name and address as required by the natural reading of Rule 11(2). This is not a formal issue but protects a specific purpose: the Rules require separate methods of notification because of the level of trust and control that could be exercised by the Tribunal in respect of a non-legal representative as opposed to a legal representative.

A legal representative is a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of that Act. A legal representative can be trusted to make and provide to a court or tribunal reliable representations, such as that they are properly instructed by their client, and they are accountable by virtue of the professional rules and regulation to which they are subject. That is not necessarily the case with any other person who states that they represent the taxpayer because of the different level of responsibility and accountability for a non-legal representative. There is no guarantee that a non-legal representative will act professionally or ethically, when there is no requirement that they be a professional or regulated person, and there is no easy traceable route for the Tribunal to establish and verify that the taxpayer has actually given authorisation for the representative to act which may then be asserted by a representative especially if, as in this case, the taxpayer has not signed the notice of appeal. Rule 11(2) therefore gives the Tribunal some confidence that the party itself has given the representative authority to act because the party must send the notice of the representative’s name and address to the Tribunal.

Professor Zarkov also raised an argument that Melvyn Langley of Accura had misleadingly marked the box in the notice of appeal stating that ‘I am the legal representative* of the Appellant” by virtue of his signature although the asterisk mark (*) next to the word “representative*’ refers clearly to Rule 11(7) of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. He contended that as Accura was not a legal representative for the purposes of the Legal Services Act 2007, the notice of appeal did not provide any authority for it to act.

He went further and even contended that there may have been a deliberate or fraudulent misrepresentation by Accura in the form of authority provided to the Tribunal in which the Appellant’s signatory’s name and signature were included. He relied on the fact that the copy of the form of authority was hardly visible or legible and it is not clear that it was in fact signed by a company director of the Appellant, as opposed to the representative itself, and thus not clear that the representative had indeed been authorised to act. This is reinforced by the fact that the email attaching the form was sent to the Tribunal by the representative who was not a legal one and not by the Appellant itself.

Mr Way, for HMRC, made the four alternative submissions opposing the appeal which we have summarised in (i)-(iv) at paragraph 5 of this decision and which we consider below.