[2024] UKUT 00321 (TCC)

References to paragraphs of the Decision are in the form [x].

In the Decision the FTT refused the application made by the Applicant to appeal out of time. It was found that the Applicant was three years late in seeking to appeal a decision made by HMRC that he was liable to duty assessment of £31,885 and a £20,725 penalty following seizure of 304kg of concealed hand rolling tobacco in 2 wooden crates in the load of the vehicle driven by him.

The FTT recognised that the starting point was the need to give effect to the overriding objective to deal with cases just and fairly [12]. The FTT then set out the approach to determining an application to make a late appeal as described in the case of Martland [14], noting that while it was necessary to consider any obvious strengths and weaknesses in the Applicant’s case, this did not involve a full analysis of its prospects of success. The FTT noted that the amount at stake and the consequences of an appellant not being allowed to pursue an appeal are not of great weight in deciding whether to admit a late appeal.

The FTT found that HMRC had written to assess the Applicant on 16 March 2018; the Applicant’s representative at the time (Dr Van Dellen) wrote to HMRC in January 2021 and then requested a review on 24 June 2021; and the appeal was not brought until 16 August 2021 [18]. The FTT did not accept that the first notification received by the Applicant was in January 2021 as claimed in the appeal, explaining that there was no evidence that earlier letters sent by HMRC had not been received [20]. Instead, the FTT found that in the light of the evidence overall there was a delay of more than three years in seeking to appeal the 16 March 2018 assessment. Such delay was found to be serious and significant [19]. However, the FTT identified the even if the delay in bringing the appeal were to be measured from January 2021 it would still be serious and significant [22].

The FTT described the Applicant’s case as being “very weak indeed”, given, in particular, the lack of challenge to the evidence from HMRC. It was stated that it is “certainly not a compelling case which would weigh heavily in the balance against long and unexplained delay”.