UT/2021/000157 - [2024] UKUT 00110 (TCC)

As regards the limited basis on which permission had been granted, Mr Tenconi sought to persuade us that we should address the question of whether the rights were property. That issue, he emphasised, was inextricably entwined with the question of disposal. In doing so he also relied on the following statement from the Court of Appeal’s refusal of his application to appeal the Administrative Court’s refusal to allow Mr Tenconi’s out of time judicial review application against Judge Jones’ permission refusal. There Warby LJ said:

“If there is a debatable issue of law in this case is the one which was at the forefront of Mr Tenconi’s case throughout, and on which the UT gave permission to appeal, namely whether the rights which Mr Tenconi transferred are assets or incorporeal property for the purposes of s 21 TCGA.”

We recognise that there is some ambiguity over what exactly was regarded as the debateable issue. The issue said to be debateable actually corresponded to a ground which had specifically been rejected by the Upper Tribunal (whether what was transferred was property) rather than the ground that had been granted (whether there had been a disposal).

However, irrespective of whether the statement refers to the view on a ground on which permission was refused or seen as an interpretation of the breadth of the scope of the permission that was granted, we agree with Mr Donnelly the statement cannot be read as altering, and could not have altered, the scope of the appeal in relation to which permission had been granted. The statement was not part of the reasoning for the Court of Appeal’s refusal of the application before it for two reasons. First, the permission to appeal to the Court of Appeal was against the Administrative Court’s decision to refuse to extend time; that was refused because Mr Tenconi had not identified any ground of appeal against that decision, and being a discretionary decision the Court of Appeal did not consider it a case where there was some error of principle outside the bounds of reasonableness. Second, as described in the permission decision, the underlying ground in issue was one Mr Tenconi pursued in the alternative regarding whether the transfer was a deemed disposal under s22 TCGA. The permission refusal decision was not addressing, nor seeking to address, the merits of either Mr Tenconi’s other grounds on which he had been refused, nor indeed the scope or interpretation of the ground on which permission had been granted. Coming as it did at the end of a decision in which permission to appeal had effectively already been refused, we consider the statement was simply a consolatory postscript reminding Mr Tenconi that he still had the benefit of a ground of appeal on which the Upper Tribunal had granted him permission to appeal.

Mr Tenconi argues that the tribunal does nevertheless have the discretion to take account, in reaching its decision, any matters which might lead to, what he termed, a miscarriage of justice despite the fact the UT had not given permission. That was consistent with the tribunal’s overriding objective and with the proper administration of justice. (Mr Tenconi made this point primarily in the context of his arguments in the alternative on why he should be able to resurrect his ground of appeal that there was no s22 deemed disposal, but the point would, if correct, apply equally to his arguments about why this tribunal ought to re-examine his arguments on whether the distribution rights in question were capable of being incorporeal property in the first place.) He referred by way of support the Upper Tribunal’s decisions in Kevan Denley v HMRC [2017] UKUT 0340 (TC) at [29]-[34] and Lloyds Bank v HMRC [2023] UKUT 00013 at [100] onwards.

Mr Tenconi is right that these were both cases where the tribunal acknowledged that it had jurisdiction to consider points in relation to which permission had not been granted previously. However, the difference here is that the argument Mr Tenconi seeks to raise had been specifically considered by the Upper Tribunal but then duly refused with reasons at the permission stage. Finality in decision making is also an important concept in fairness and in the administration of justice. Allowing a party to reopen a ground that had already been raised but specifically rejected at the permission stage, and moreover in circumstances where any possibility of a judicial review of that decision had been exhausted (there being no statutory right of appeal against such permission refusals) would undermine the purpose of the permission stages and the finality of such decisions. We therefore reject any argument that Mr Tenconi can run the arguments he sought to that the rights in question were incapable of constituting property. For similar reasons, we reject Mr Tenconi’s attempt to re-open the ground, previously refused by the Upper Tribunal, that the FTT had erred in its alternative analysis that there was a deemed disposal under s22 TCGA.