Case: Power to review decision of Tribunal’s own motion
 UKFTT 0302 (TC)
Judge Richard Thomas
Decision released 11 June 2018
TMA 1970, s. 49 – FA 2007, Sch. 24, para. 15 – FA 2007, Sch. 24 , para. 19 – Tribunals, Courts and Enforcement Act 2007, s. 9 –Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, r. 41 – Couldwell Concrete Flooring Ltd (No 2)  TC 05603 – Data Select Ltd v R & C Commrs  BVC 1,743 – Denton v T H White Ltd  EWCA Civ 906 – Martland v R & C Commrs  UKUT 178 (TCC) – Re Petition of IR Commrs for Judicial Review  BTC 846 – Romasave (Property Services) Ltd v R & C Commrs  BVC 518.
Rezaee  TC 06532
The Judge decided of their own accord to review his decision and considered that it should be set aside and remade.
The decision required the Judge to consider the FTT’s power to review of its own motion. Consideration was given to the interaction of TCEA, s. 9, the FTT Rules, r. 40 and 41. It was concluded that where there is a ‘Permission to Appeal’ (‘PTA’), the Tribunal must of its own motion review a decision if it is satisfied thee is an error of law in the decision. The Appellant had made a simultaneous PTA application resulting in the Judge being bound to consider whether to review. The Judge further decided to exercise the power in r. 42 and that expressly allows to set aside the decision as an application for the decision to be reviewed. It was identified that he review could be treated as an application under s. 9 TCEA independently of the PTA application, and as such the review was not limited where there is an error of law.
After the initial decision and before the review, the UT released their decision in Martland v R & C Commrs  UKUT 178 (TCC), which contained guidance to the FTT on how to approach applications for permission to make a late appeal. That guidance set out three stages:
Stage 1 required considering whether the delay of 10 months was serious and significant. It was.
Stage 2 required considering the reason for the delay. The Appellant was in Iran caring for his terminally ill father until 25 December 2015, then returned to Iran in March 2016 and came back to the UK only in October 2016. The Appellant suffered depression and became estranged from his wife and family. The business had failed and he had not attended to his affairs as a result. He had not returned to the marital home to which the PLN had been sent. The treatment for depression was evidenced by medical statements from Iran.
Stage 3 required looking at all the circumstances. It was noted there was some prejudice to HMRC, while the Appellant would be substantially prejudiced if permission were denied and could cause his bankruptcy.
The original appeal was denied because an appeal against a PLN could only be made on the grounds that the company officer’s actions did not cause the inaccuracies or that the share of the penalty attributed to the officer is excessive. It was also not possible in an appeal against a PLN to contest the liability of the company to the penalties. The company must do that although it no longer existed and so could not appeal.
The Judge found that he had made an error of law in assuming that the appellant had no way of challenging the imposition of the penalty or its amount. On reflection, it was found possible that the appellant may be able to demonstrate that he did not receive the PLN in sufficient time to enable him to make a timely appeal, and that any presumption established by s. 7 Interpretation Act 1978 may be rebuttable.
The decision was made to grant permission for the Appellant to bring a late appeal. The Judge did however state that whilst giving permission it did not mean he was deciding the appeal would be successful.
The case contains a useful guide and a test that can be applied by a practitioner to establish whether a late appeal may be given permission.
For further commentary on appeals and dispute resolution, see Direct Tax Reporter at ¶188-800.