UT (Tax & Chancery) UT/2023/000103 - [2025] UKUT 00102 (TCC)

Ground 6 is that the FTT “erred in law in concluding that applications for relief under s268 FA 2004 were not sent to HMRC in April 2016, contrary to evidence provided by Mr Carwithen and Mr Dowding”.

Before the FTT, MLT had submitted that it had filed applications for discharge of scheme sanction charges in April 2016. HMRC’s position was that no applications had been received until December 2018, and that as a result MLT’s applications for discharge of scheme sanction charges relating to the unauthorised payments assessed on Formwise, Langford and Prisym were out of time.

The FTT summarised the evidence at [135]-[142] and set out various preliminary findings of fact at [143]. It then said at [144] (our emphasis):

“We accept that a bundle of documents was sent in April 2016 by Mr Carwithen relating to these s 268 applications, but there is no evidence to support the statements of Mr Carwithen and Mr Dowding that they were actually sent to HMRC.”

The FTT went on to conclude at [148] that the applications were not sent to HMRC before December 2018. That is a finding of fact.

Mr Simpson submits that [144] contains an error of law, because there was evidence to support the statements of Mr Carwithen and Mr Dowding that the applications were sent to HMRC.

A tribunal will make an error of law if it makes “a finding which, on the evidence, is not capable of being rationally or reasonably justified”, see Megtian cited earlier in this decision. However, the evidence put forward by Mr Simpson does not come close to meeting that threshold.

Mr Simpson referred to an e-mail dated 14th March 2016 from Mr Carwithen to Lynne Gray of HMRC which read (our emphasis) “I can also confirm that I will be issuing Section 268 appeals to HMRC Pension Scheme Services over the course of this week”. Even Mr Simpson accepted that this amounted only to “indirect corroboration” of MLT’s position. He also relied on a second email dated 8 August 2026 from Mr Carwithen to HMRC in which he said “Morgan Lloyd had issued additional appeals under section 268…we hadn’t heard from yourselves since we sent them”. That email is evidence that Mr Carwithen genuinely believed he had sent the applications, it is not evidence that they had been sent. We note that at [145] the FTT made a finding of fact that Mr Carwithen held that genuine belief.

Mr Simpson also submitted that “taken as a whole, this documentary corroboration strongly supports the proposition that the applications were sent to HMRC”. This is simply another way of challenging the FTT’s assessment of the evidence. The weight to be given to particular evidence is a matter for the first instance decision-maker, as Lord Millett emphasised in Begum v London Borough of Tower Hamlets [2003] UKHL 5, [2003] 2 AC 430 at [99] when he said:

“The court cannot substitute its own findings of fact for those of the decision-
making authority if there was evidence to support them; and questions as to the weight to be given to a particular piece of evidence…are for the decision making authority and not the court.”

This Ground does not identify any error of law in the FTT Decision. It is also dismissed.