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Procedure.Tax
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M18: Extending and shortening time limits
Power to extend or shorten
“(3)…the Tribunal may by direction--
(a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment setting down a time limit;” (FTT Rules, r.5(3)(a))
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Conflict with enactment setting down time limit within which referral "must" be made
"[30] However, I do not agree. As [the partnership] submits, not only is the view expressed by the Upper Tribunal, which is not supported by any reasoning, obiter and therefore not binding, rule 5(3)(a) and rule 21 are silent as to the existence of any exception. Moreover, if the Upper Tribunal in VK were right it would render the restriction in rule 5(3)(a), “unless such extension … would conflict with the provision of another enactment setting down a time limit” otiose.
[31] It therefore follows that as an extension of time would conflict with a provision of another enactment, namely [TMA 1970] s 12ABZB(5), the Tribunal does not have the power under rule 5(3)(a) to grant an extension of time to make a referral under s 12ABZB(3) with the result that any referral that is not made in time “must not” be admitted." (Anderson v. PWC v. HMRC [2022] UKFTT 457 (TC), Judge Brooks - referral of dispute re partnership shares)
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Apply for an extension in advance
“If HMRC have a difficulty with compliance they should, where possible, make application to the tribunal to be relieved of compliance on the basis of some alternative proposal which should be canvassed with the taxpayer prior to the application. The reasons for non-compliance and the merits of the alternative should be explained. HMRC had no good reason indeed no stated reason at all for their non-compliance.” (BPP Holdings v. HMRC [2016] EWCA Civ 121, §43).
“HMRC’s failure to apply in advance for an extension of time was lamentable; at the very least it was discourteous to the appellant and the tribunal.” (HMRC v. BPP Holdings Ltd [2014] UKUT 496 (TCC), §48).
- Not relief from sanctions approach if made in advance
"[15] I first need to decide whether this is an in-time application for an extension of time. The appellant lodged its notice of appeal with the tribunal on 4 November 2022, the tribunal did not notify HMRC of this until 3 February 2023. The 60-day period for filing a statement of case, prescribed by the rules (and confirmed by the tribunal in its letter of 3 February 2023) therefore started on 3 February 2023 and ran until 4 April 2023. The application to extend time was made on 27 March 2023 i.e. before that deadline expired.
[16] I therefore agree with Ms Brown that the application to extend time is an in-time application and thus this is not a relief from sanctions case. Instead, I should apply rule 2.
[17] In Hallam Estates Jackson LJ at [26] stated:
"26. An application for an extension of the time allowed to take any particular step in litigation is not an application for relief from sanctions, provided that the applicant files his application notice before expiry of the permitted time period. This is the case even if the court deals with that application after the expiry of the relevant period. The Court of Appeal established this principle in Robert v Momentum Services Ltd [2003] EWCA Civ 299; [2003] 1 WLR 1577: see in particular para 33. This still remains the case following the recent civil justice reforms. See Kaneria v Kaneria [2014] EWHC 1165 (Ch) at paras 31 to 34. I agree with those four paragraphs in the judgment of Nugee J".
[18] And in Kaneria at [34]:
"34. I accept this submission. It seems to me that unless and until a higher Court has said that the approach in Roberts is no longer to be followed, I am bound by that decision (i) to regard an in time application for an extension of time as neither an application for relief from sanctions, nor as closely analogous to one, and (ii) to exercise the discretion under that rule by applying the overriding objective rather than the terms of CPR r 3.9"." (Tresserras v. HMRC [2024] UKFTT 538 (TC), Judge Popplewell)
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- Excessive request for extension granted due to FTT delay in considering application
"[47] I agree with the Appellant that the Respondents seem to have sought more additional time than was strictly justified. However, given the time that has passed, the limited options available to the Tribunal to deal with breaches of directions if a shorter extension is granted, and in order to begin to progress this appeal again, I have eventually decided (albeit with some reluctance) to retrospectively grant the Respondents an extension of time until 28 February 2025 to file their Statement of Case." (South Crescent Trustees Limited v. HMRC [2025] UKFTT 417 (TC), Judge Bailey)
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Parties must try to agree in-time application for extensions or else explain why not consented to
"[10] In the absence of an agreement a party may apply to the Tribunal for an extension of a time limit adopting the following procedure:
(1) The application must be made in writing by the applying party.
(2) The application should be accompanied by:
(a) Evidence of an attempt to agree the application with the other party;
(b) The other party’s reasoned objections as communicated in response to the attempt to agree the application; and
(c) Any response to that objection.
(d) An indication from the parties as to whether the application can be determined on the papers.
(3) The application must be received no later than the due date for compliance of the direction for which extension is sought.
[11] All in time applications made without consent will be determined by a judge on the papers or listed for a hearing." (FTT Practice Direction)
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- If parties agree, up to two 28 days extensions automatically approved by FTT
"[8] Where made in accordance with the steps below, an application by agreement will be automatically granted by the Tribunal with the due date for compliance set as the date agreed between the parties:
(1) Such an application must be made in writing by the applying party together with evidenced consent of the other party and must be received by the Tribunal no later than the date for compliance of the direction for which the extension is sought. Suitable evidence of consent includes copies of emails from the other party, but not simply copying the other party into the application.
(2) The period in which HMRC’s statement of case is to be provided may be extended by up to 60 days from the due date for service of the Statement of Case as communicated to them when the Tribunal acknowledges and serves the notice of appeal. Only one such extension may be agreed.
(3) Subject to paragraph (4) any other directions may be extended by up to 28 days in a single application and subject to a maximum of two agreed applications."(FTT Practice Direction)
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- Does not apply to unless orders or where hearing is imminent
"[8] (4) The directions excluded from paragraph (3) above are:
(a) any direction made pursuant to rule 8(3)(a) FTTTC Rules and which provide that unless the party complies with the direction the appeal will be struck out or barred from the proceedings;
(b) any direction the compliance date for which is within 28 days of the listed hearing date." (FTT Practice Direction)
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- Automatic extension of subsequent deadlines
"[8](5) Where such applications are agreed between the parties, all extensions consequential on the first extension shall also be made automatically. This may be achieved through the granting of original directions which provide for compliance “no later than x days following the due date for compliance of a prior direction” and which are thereby adjusted when a revised date for compliance of the preceding direction is agreed. However, where directions have been granted by reference to specific and identified dates, the date for compliance of subsequent directions will be adjusted such that the revised date for compliance of those subsequent directions shall be the same number of days following the amended direction as from the original direction, or as agreed between the parties." (FTT Practice Direction)
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- Unreasonable refusal to consent leading to potential costs order
"[8] (6) Failure by either party to provide reasonable consent to an application otherwise meeting the terms of this paragraph may be determined as unreasonable conduct in connection with an application for costs made pursuant to rule 10(1)(b) FTTTC Rules." (FTT Practice Direction)
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- Judge to consider extensions in excess of those automatically approved
"[9] Where the conditions identified in paragraph 8(2) and 8(3) above are not met or meet the description in paragraph 8(4), the parties should nevertheless seek to agree the application as provided for in paragraph 8(1) but the application will be considered by a judge and not granted automatically." (FTT Practice Direction)
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Procedure for out of time extension applications: apply at time direction can be complied with
"[12] Where the application is not made prior to the date for compliance of the direction for which the extension is sought the application should be made as soon as possible and must only be made at the point at which it can be complied with.
[13] It should include an application seeking permission for late compliance particularising:
(1) The length of delay;
(2) The explanation for the delay; and
(3) Why, in all the circumstances, the non-compliance should be excused including the views of the other party on the circumstances of non-compliance.
(4) The parties’ indication as to whether the application can be determined on the papers." (FTT Practice Direction)
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Examples
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- Extension for SoC granted where HMRC reasonably believed it may not be due yet
"[19] Under rule 2, I must deal with this application fairly and justly. It would not be fair and just to sanction HMRC by preventing them from taking part in this appeal simply because they submitted their statement of case after the original due date. That would be wholly disproportionate to any failure. Indeed, I cannot see that they have failed to do what they are obliged to do.
[20] They took the view that the penalty comprises duty, and thus either a certificate of hardship or payment of the penalty was required to give the tribunal jurisdiction to entertain the appeal. Pending resolution of that issue, their obligation to submit their statement of case by 3 February 2023 should be suspended. This seems to me a reasonable and pragmatic stance." (Tresserras v. HMRC [2024] UKFTT 538 (TC), Judge Popplewell)
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- Short extension for SoC (2 weeks) applied for in advance granted
"[14] The application, of 20 December 2021, for an extension of time, from 14 January 2022 to 31 January 2022, to provide the SOC to the Tribunal and Redevco was made on the grounds that HMRC:
“… experienced unexpected difficulties in transferring the bundle of papers to their counsel. Further attempts to transfer the documents were undertaken on 16 December 2021 but, in view of the counsel’s availability until the end of January, an extension of time is required for the Respondents to obtain advice and assistance from their counsel in relation to this appeal. HMRC’s position is that the Appellant will not suffer any prejudice as the full case management directions have not yet been issued and a hearing date is not yet fixed.”
[15] Redevco opposed the application on the grounds that HMRC had provided “no valid reason” for seeking the extension of time or explained why the remaining time for doing so, to 14 January 2022, was insufficient.
[16] Having regard to all the circumstances, particularly the short extension of time sought, that the SOC has now been provided and that Redevco no longer maintains its objection, I have concluded that the application should be allowed, especially as it was made in advance of the compliance date and, as is clear from Robert v Momentum Service Limited [2003] 1 WLR 1577 at [33], is not an application for relief from sanctions." (Redevco Properties UK 1 Limited v. HMRC [2022] UKFTT 102 (TC), Judge Brooks)
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