Case: Strike out was set aside

Judge Richard Thomas

Decision released 12 November 2018

Value added tax – Application by appellant company to set aside the FTT’s decision to strike out its appeal – Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273 (L. 1)), rule 38(2)(c) – Company’s application allowed.

Mainpay Ltd TC 06813

Summary

Mainpay Ltd (the appellant company) applied to set aside the FTT’s decision ([2018] TC 06726) to strike out the appeal against VAT assessments.

The appellant relied on rule 38(2)(c), which needs there to have been a procedural irregularity, other than one in rule 38(2)(a) or (b). The irregularity, which the appellant highlighted, was the FTT’s failure to recognise that it had made, and had not withdrawn, an application to amend its grounds of appeal.

The FTT accepted that there had been an application, which was made in an email, to amend, although prefaced by remarks that it was not thought to be necessary. However, the FTT was not aware of that email, although the Tribunal as a body was aware of it. In those circumstances, the FTT decided that there had been a procedural irregularity, because it was not made aware in time of the email (para. 21 of the decision). In the light of that irregularity, the FTT decided that it was in the interests of justice to set the decision aside, so the case was relisted to hear the appellant’s application to amend and then, if granted, either:

HMRC’s application to strike out, should they pursue it; or

the appeal itself, should they not pursue it.

Comment

A decision by the FTT to dispose of proceedings may be set aside if one of the conditions in Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273 (L. 1)), rule 38(2) is met and the FTT considers it is in the interests of justice to set aside the decision.

For commentary on setting aside a decision that disposes of proceedings, see In Depth at ¶61-685.

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