Case: Upper Tribunal refuse late application for permission to appeal

Released 7 August 2018

[2018] UKUT 0254 (TCC)

Upper Tribunal (Tax and Chancery Chamber)

Judge Roger Berner

Decision released 2 August 2018

Procedure – Late application for permission to appeal – Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), r. 2, 5(3)(a) and 21(6) – Whether an extension of time should be granted and application admitted – No – Application refused.

Bell v R & C Commrs [2018] BTC 521

Summary

In the substantive case of Bell [2016] TC 05512, the FTT accepted that HMRC were entitled to raise discovery assessments against Mr Bell for each of the 15 years under appeal. The FTT:

set aside ten of the assessments (for the set aside tax years) because they were not made on an intelligible basis; and

adjusted downwards the assessments for the other five years (the determined tax years).

Following the release of the FTT’s decision, Mr Bell wrote to HMRC to express his dissatisfaction with the decision. This letter found its way to the FTT which treated it as an application for permission to appeal. The FTT refused the application in a written decision which said that Mr Bell had a right to apply to the UT to appeal against the decision no later than one month after the date of the notice.

HMRC also raised new assessments in place of the 10 set aside assessments. Mr Bell wrote to HMRC to appeal against these assessments and HMRC wrote to say they were satisfied they were correct and to let Mr Bell know that if he was dissatisfied he could either ask for the decision to be reviewed or notify his appeal to the FTT.

Rather than appeal against: (1) the FTT’s decision not to allow an appeal in respect of the determined assessments; and (2) the new assessments, Mr Bell wrote to HMRC stating that he was intending to apply for a judicial review of ‘this entire case’. HMRC advised Mr Bell that his claim for judicial review was misconceived and said that as he could have applied to the UT for permission to appeal, judicial review should not be sought.

Mr Bell wrote to HMRC and advised that he did not appeal to the UT because there did not seem much point as the UT were ‘instrumental in the decision that led to the final outcome at the First Tier Tribunal’ so there ‘seemed little point in wasting more public funds in going down that route’.

After months of further correspondence Mr Bell instructed tax advisers. With their help HMRC agreed to allow a late appeal in respect of the new assessments raised in respect of the set aside tax years, but not for the determined tax years.

Mr Bell made this late application to the UT for permission to appeal one year and one month after the deadline for applying.

Applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906 the UT decided that:

(1)The delay in making the application for permission to appeal of one year and one month was serious and significant.

(2)The reason for the delay was because Mr Bell had chosen to embark on a judicial review rather than pursuing matters through the tribunal. The UT rejected Mr Bell’s arguments that: he did not understand the process; he believed he had already made an application for permission to appeal; HMRC had confused him; and his learning difficulties (dyslexia, dysgraphia and attention deficit disorder) contributed to his failure to take appropriate action.

(3)Taking all the circumstances into account and the prejudice to Mr Bell and the prejudice to HMRC and the administration of justice through the finality of litigation it was not a case where an extension of time should be granted.

The UT reached this conclusion having taken account of the fact that it did not consider that Mr Bell’s case was an obviously strong one, and that there was nothing therefore in the merits that affected the extent of the prejudice to him in refusing an extension of time.

Given the decision not to extend the time limit, the UT did not need to consider the application for permission to appeal. However, it noted that it would in any event have refused permission to appeal because it considered that neither of the applicant’s two grounds of appeal amounted to an error of law by the FTT.

Comment

The taxpayer was unhappy with a decision reached by the FTT concerning various tax assessments. He applied to the FTT for permission to appeal against the FTT decision. As that application was refused, if he wanted to continue with the appeal he should have applied to the UT within a month of the FTT refusal. Sadly, by the time the taxpayer sought help from a tax adviser and made an application to the UT it was over a year late. The UT decided not to allow the late application because:

(1)the delay was serious and significant;

(2)the delay was caused by the taxpayer choosing to embark on a judicial review rather than pursuing matters through the tribunal; and

(3)on balance it was not right to extend the deadline.

For commentary on applying to the UT for permission to appeal against an FTT decision, see the Direct Tax Reporter at ¶190-055.

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