UT (Tax & Chancery) UT/2023/000096 - [2024] UKUT 00203 (TCC)

On 23 August 2021, at my behest, the Tribunal wrote to the parties intimating that I had considered the Applications for Permission to Appeal. I had not had an opportunity to speak to Mr Bell but it was my intention to review the Decisions in terms of Rule 41 the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (as amended) ("the Rules”).

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I considered in accordance with Rule 40 of the Rules whether to review the Decision and decided that if there was a perceived lack of clarity, which would be an error of law, then I should undertake a review.

That being the case, in terms of Rule 41(3) of the Rules, I was required to give the parties the opportunity to make representations in relation to the proposed action.

I did so and the draft suggested changes were issued on 2 May 2023.

On 25 May 2023, as directed, both parties lodged with each other their submissions on the proposed revisions.

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I had said in the decision on the application for leave to appeal that I had had in mind the parameters for review set out in paragraph 45(8) in Vital Nut Co. Limited v HMRC [2017] UKUT 192 (TCC). Barnes Roffe argue that the proposed changes appear to do more than clarify the original reasoning.

Their submissions on the proposed revisions were detailed and I have carefully considered them. I had intended to address those but on reflection, I believe that there is a bigger problem.

One of the issues that Barnes Roffe raise, fairly, is that the delay in drafting the proposed revisions is a factor because the Tribunal’s memory would inevitably be dimmed by the passage of time.

Barnes Roffe suggest that the changes are not made and the original application for leave to appeal be granted unless the Tribunal was minded to allow the appeals in light of the arguments advanced in relation to the proposed revisions or if the Tribunal accepts that there are flaws in the original reasoning that are adverse to the appellants, that should be highlighted.

I do not accept that the appeals are to be allowed. Mr Bell and I decided that the appeals were dismissed and we stand by the Decision.

As I indicated in the review decision, when I considered in accordance with Rule 40 of the Rules whether to review the Decision I decided that if there was a perceived lack of clarity, which would be an error of law, then I should undertake a review. The review was not undertaken because I (or Mr Bell) accepted that the Decision was flawed and unreasonable as averred by the appellants.

Since I did find that there was a possible error in law in that there was a perceived lack of clarity, then the appellant’s original application for leave to appeal should be granted. Accordingly the proposed revisions will not be made.”

“Please find enclosed decision notice which has been amended under Rule 37 (clerical errors and accidental slips or omissions)

Please note that the release date of the decision to you remains 21 July 2021 and the time limit in which you may exercise your right of appeal is unchanged.”