UT/2024/000022 - [2025] UKUT 00309 (TCC)

The Appellant contends that the FTT failed to consider the argument that the PLN would force him into bankruptcy when conducting the evaluation of all the circumstances at Stage 3. Although the FTT referred at paragraph [79] to the prejudice being “very great” this cannot have been a reference to the likelihood of bankruptcy, given that the FTT went on to state that that this was “common to all such cases”. The threat of bankruptcy is plainly not common to all cases. The Appellant argues that this factor, alone or in combination with others, would have tipped the balance in favour of granting permission for a late appeal.

We can deal with this briefly. We agree with Ms Goldring’s submission that the FTT did take this matter into account. The only sensible way to read the FTT’s acceptance that the prejudice Mr Pawar would suffer would be “very great” is by reference to Mr Pawar’s argument that he would likely be made bankrupt if permission was not granted. We cannot imagine that, having mentioned the likelihood of bankruptcy in paragraph [77] of the Decision, the FTT did not have it in mind when it wrote paragraph [79].

We thus disagree the wording that follows (“this is common to all cases”) indicates the FTT failed to consider the argument regarding the prejudice caused by being made bankrupt. That does leave the issue of what the FTT intended by those words. We agree the wording was inapposite. However all we suspect the FTT was seeking to convey was the wider context to late appeal applications in relation to tax in the FTT and that it was commonplace in late appeals in the tax tribunal that the prejudice of losing the opportunity to litigate over a large amount of tax would result in prejudice and/or that it was not uncommon for such loss of opportunity to litigate such sums to give rise to a threat of bankruptcy.

It is also worth noting in passing the observation the Upper Tribunal (Judge Cannan) made when granting permission to appeal, that the FTT’s reasoning might have been derived from [60] of HMRC v Katib [2019] UKUT 0189 (TCC). In that passage the UT in Katib used the terminology of “common feature” when explaining why it did not regard the threat of a person losing their home:

“…as weighty as the FTT said it was. The core point is that (on the evidence available to the FTT) Mr Katib would suffer hardship if he (in effect) lost the appeal for procedural reasons. However, that again is a common feature which could be propounded by large numbers of appellants, and in the circumstances we do not give it sufficient weight to overcome the difficulties posed by the fact that the delays were very significant, and there was no good reason for them.”

We therefore reject this ground of appeal.