© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
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M32a. Late appeals
- Query whether it is lawful/relevant to, ex ante, give additional weight to efficient conduct and compliance with rules
"[92] The Appellant submits that as a matter of judicial comity we should follow the decision in Medpro UT unless we consider it to be clearly wrong. The difficulty for us here is the existence of two previous decisions of the Upper Tribunal, one of which holds the other to be clearly wrong.
[93] We find ourselves unable to conclude that either decision is clearly wrong or, conversely, clearly right. We note that HMRC are contemplating an appeal so it is possible the conflict may be resolved at a higher level, but we cannot delay this decision on that account. In the circumstances, we consider that we should follow Medpro UT on the grounds that it is the more recent decision and expressly considers the correctness of the earlier decision.
[94] Taking that approach, the FTT (which obviously did not have the benefit of the analysis in Medpro UT) erred in so far as it referred at [79] to the particular importance of the need for statutory time limits to be respected. We have sympathy with Ms Goldring's suggestion that the FTT would have reached the same decision even if it had not given particular importance to that factor, but we do not consider that we should simply dismiss the error as not material. The error was in our view material because it might have made a difference to the outcome." (Pawar v. HMRC [2025] UKUT 309 (TCC), Judges Raghavan and Paines KC)
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"[87] If the essence of Ground 4 was that the Denton analogy was inapt to this type of case, then we would have no hesitation in dismissing Ground 4:
(1) If the only question arising under Ground 4 was the aptness of the analogy with CPR 3.9, then our conclusion would be (i) that the analogy is clearly apt, and (ii) that even if we disagreed with the aptness of the analogy, we would not regard the Upper Tribunal in Martland (and the other cases since Martland) as having been "clearly wrong" in drawing upon that analogy. We consider the Martland approach to be an apt one for deciding whether extensions of time under section 83G(6) VATA should or should not be granted.
(2) The problem, which we address below, is that the Denton approach was only possible because of the drafting change to CPR 3.9 and there has been no such change in the statute. This is nothing to do with "aptness" and everything to do with statutory construction.
[...]
[97] The wording of section 83G(6) VATA is clear: it tracks not the "new version" of CPR 3.9 but the old version. The Upper Tribunal has placed a fetter on the discretion of the FTT which is not justified by the terms of section 83G(6) VATA. The Upper Tribunal cannot, in the case, by way of binding guidance, direct the FTT as to what weight to place on particular factors when it is considering, in all the circumstances, whether to extend time for appealing. The factors in the old CPR 3.9 and the approach described by the Upper Tribunal in Data Select and Aberdeen City provide sufficient guidance for the FTT to exercise its discretion, as does [44] (but not [45]) of Martland itself.
[98] The question is whether the Upper Tribunal's approach is "clearly wrong". Given the force of the point as advanced by the Appellants, and the frequency with which the FTT applies the Martland discretion, it is vital that this area of the law be clearly stated. It would be unfortunate for this lack of clarity to infect every application for an extension under section 83G(6) VATA. Given these factors, and the conclusion reached in relation to the construction of section 83G(6) VATA, Marcus Smith J concludes that the practice adopted in the FTT with regard to Martland and the section 83G(6) VATA power is clearly wrong. He would therefore allow the appeal on Ground 4 as well as on Grounds 1 to 3."(Medpro Healthcare Limited v. HMRC [2025] UKUT 255 (TCC), Marcus Smith J; Judge Cannan dissenting on this issue)​
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FTT (with CoA judge sitting) declining to follow Medpro
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"[70] We should state immediately that we doubt that the difference in the approach to the test to be applied to determine whether to grant permission to bring a late appeal between Martland and Medpro is likely to lead to different results in many cases. This is because when it comes to evaluating all the circumstances of the case, factors specific to the case are always likely to determine the outcome.
[71] We will, in determining whether to grant permission to make a late appeal, adopt the three stage test, which it is common ground between Martland and Medpro should be applied. Thereafter we will consider all the circumstances of the case by applying the test, and stricter approach, set out in Martland. This is because it seems to us that the approach in Martland is consistent with the approach of the Court of Appeal in BPP Holdings which was affirmed, or permitted, by the Supreme Court. In that case, as appears from the passages from Ryder LJ's judgment, the Court of Appeal directed that although CPR 3.9 was not part of the Tax Tribunal Rules, the approach set out in Denton v White should be followed. That was not said in the context of the unfettered statutory discretion in section 83G(4)(c) or 83G(6), but it seems to us that it was a statement of general application to the exercise of such discretions by the FTT Tax. We will, however, also cross-check our decision against the test set out in Medpro to see whether it leads to a different result." (Lands Luo Limited v. HMRC [2025] UKFTT 1207 (TC), Dingemans LJ and Judge Snelders)
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Rolled up hearing of late appeal application and substantive appeal
"[7] We considered that proceeding on this basis, namely "rolling up" the application for permission to bring a late appeal with the substantive appeal and hearing both together, was fair to both parties. It has given us a better understanding of the Appellants' prospects of success if were we to grant permission for a late appeal. This is in accordance with the views of the Upper Tribunal in Charles Horder v HMRC [2023] UKUT 106 (TCC) ("Horder") at [68], a case to which we refer further below." (Blocksure Limited v. HMRC [2024] UKFTT 397 (TC), Judge Gauke)
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Appeal time limit not contrary to EU law principle of effectiveness
"[60] As we have discussed above, Mr Maas made various submissions to the effect that Mr Hewitt had not been provided with an effective remedy in breach of the EU law principle of effectiveness. In summary, those submissions were that:
(1) Mr Hewitt did not have an effective remedy because the 30-day time limit began to run and expired at a time at which Mr Hewitt could not have been aware that he had an enforceable right;
(2) Mr Hewitt did not have an effective remedy because the 30-day time limit began to run and expired before the date on which the Mr Hewitt’s right was clearly established by the decision of the CJEU in Shields CJEU; and
(3) the relevant provisions of the Principal VAT Directive had not been transposed into UK domestic law, and, in those circumstances, the principle of effectiveness prevented HMRC from relying upon any time limit against Mr Hewitt’s claim to enforce directly effective EU law rights.
[61] For the reasons that we have given above, we reject all of those submissions. In summary:
(1) The fact that a time limit or limitation period on claims begins to run and expires before the date on which the claimant is aware that they had an enforceable right does not breach the principle of effectiveness (Class 8 [88]-[90], [94]).
(2) The case law authorities also demonstrate that the fact that a time limit or limitation period for appeals begins to run and expires before the date on which the claimant’s right is clearly established by a decision of the CJEU does not prevent the claimant’s right to appeal being regarded as an effective remedy (Leeds [43], FII [151], Caterpillar [52]). It is nothing to the point that Mr Hewitt may have regarded the prospects of success at the time of the breach as vanishingly small (Caterpillar [48]).
(3) Even if it could be argued that the relevant provisions of the Principal VAT Directive have not been properly transposed into EU law, for the reasons that we have given, that would not prevent HMRC from relying upon a reasonable time limit in domestic law (Leeds [41])." (Hewitt v. HMRC [2021] UKUT 231 (TCC), Judge Scott and Judge Greenbank)
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Effect of FTT granting permission
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- If it was a request to appeal late to HMRC, the internal HMRC appeal process begins
"[14] Where HMRC do not agree to accept a late appeal, section 49(2) of the Taxes Management Act 1970 provides that the Tribunal may give permission to an Applicant to make a late appeal to HMRC. When considering such an application the tribunal is, unlike HMRC, not limited to considering whether the Applicant had a reasonable excuse for giving notice of his appeal to HMRC late. This was set out in the decision in R (oao Browallia Cal Ltd) v General Commissioners of Income Tax [2004] STC 296 where the Administrative Court stated:
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[15] The decision of the Upper Tribunal in Martland v HMRC [2018] UKUT 178 (TCC) (Martland) sets out how the Tribunal should exercise its discretion in deciding whether to allow an Applicant to submit an appeal to HMRC out of time...
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[49] I grant permission to the Abbey Healthcare Companies to notify their appeals to HMRC late against the Extended Time Limit Assessments." (Abbey Healthcare (East Kilbride) Limited v. HMRC [2025 UKFTT 822 (TC), Judge Snelders)
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No special treatment for liquidators taking over company's affairs
"[51] We accordingly reject the proposition advanced by this ground of appeal. That there is, in our judgment, no specific obligation on the tribunal to take into account the fact of the Company being in liquidation together with the general issues around insolvency processes which [the taxpayer] highlights, should not result in injustice. There is nothing to preclude the tribunal taking account, as part of its analysis when exercising its discretion, any particular issues that arise in a given case from a company having been put into liquidation and anything that flows from that. That will however require the appellant to advance evidence regarding the particular facts and circumstances relied on to justify the delay and in support of the appellant’s application, so that the tribunal hearing the application can evaluate those in the light of the parties’ submissions in the normal way. [The taxpayer's] submissions referred in general terms to FTT decisions which had recognised the particular “sensitivity” around appellants who were liquidators. Given a company’s status will be part of the background factual matrix, it would not be surprising if facts concerning the liquidation process, so far as it was relevant to the issue before the tribunal, were mentioned. If the appellant was seeking to extract a general principle from such decisions, we would need to have been taken to them." (Uddin v. HMRC [2023] UKUT 99 (TCC), Judge Raghavan and Judge Baldwin)
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Defective notice of appeal
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- Failure to attach decision does not mean appeal not submitted
"[40]...Had r.20(4) been intended to say that where a copy of the written record appealed against and any statement of reasons that an Appellant had, or could reasonably obtain was provided after a statutory time limit, and that permission was required for the appeal to be admitted, it both could, and should, have said so. Instead, r.20 of the FTT Rules draw a distinction between the NOA itself, and the documents referred to in r.20(3).
We therefore conclude that where a NOA is provided within a statutory time limit, but the document(s) in r.20(3) of the FTT Rules are not, that the appeal is not late and does not require permission to be admitted. The Tribunal may well refuse to allow an admitted appeal to progress further until any default in respect of r.20(3) is remedied, but that is a separate issue." (Figa Store Limited v. HMRC [2025] UKFTT 1260 (TC), Judge Watkinson)
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Whether appeal late depends on whether decisions properly served
"[128] However, we did not accept that the notices were necessarily served on the dates alleged by Mr Bracegirdle. We were referred to the decision of the Upper Tribunal in Barry Edwards that addressed the question of whether HMRC had demonstrated that notices had been properly addressed and sent to the taxpayer. HMRC accepted that if we found that the notices had not been properly notified, they are invalid and the question of an appeal or the lateness of an appeal falls away.
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[130]...However, we also consider that Mr Dougan would be significantly prejudiced if HMRC are not required to prove that the penalties are valid. We also accept that there would be no grounds of appeal against the penalties if and to the extent that we find that the notices were properly served.
[131] Weighing the relevant factors in the balancing exercise as set out in Martland, we considered that it would be in the interests of justice to give permission for the appeal against the penalties and surcharges to be admitted out of time, and in particular for the Tribunal to consider the issue of whether the penalties had been properly served." (Dougan v. HMRC [2022] UKFTT 140 (TC), Judge Nicholl)
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- Challenge to letter notifying intention to charge penalty treated as appeal
"[17] Whilst we accept that the letter of 17 January 2020 does inform the appellant that he will be receiving a formal penalty determination against which he will have a right of appeal, we have not been provided with that penalty determination, and the letter does not state the time within which the appellant had such a right.
[18] Furthermore, we are dealing here with an unrepresented litigant in person who having been sent a letter telling him that he was going to be liable to penalties, responds that "I do however contest the penalty explanation.......". It seems to us that this is a clear statement that he does not accept the penalty, and that had that wording being used in response to the more formal penalty determination, it would have been treated by HMRC as an appeal against the penalty. The objectively reasonable person would have construed those words as non-acceptance that he was liable to the penalty.
[19] All that has happened here is that the appeal has been made early. It was made against the contents of a letter dated 6 November 2019 which had been construed by the appellant as an allegation by HMRC that he was liable to a penalty. And he appealed against it within 30 days.
[20] We are somewhat surprised, therefore, that HMRC have not accepted this as an appeal not just against the contents of the letter of 6 November 2019 but also against the more formal penalty determination which HMRC claim to have sent the appellant on 17 January 2020. But they have chosen not to do so." (Thompson v. HMRC [2024] UKFTT 138 (TC), Judge Popplewell)
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Measuring delay
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- Not late where extension requested and granted by HMRC
"[11] I find therefore that Mr Taylor's letter of 10 February 2021 is either:
(1) a request for a further extension of time to review the Huntingdon Assessments and Closure Notices, which Officer Charles granted in his letter of 12 February 2021, without stipulating how long that extension would be. The appeal letter dated 8 July 2021 is therefore in time with respect to the Huntingdon Assessments and Closure Notices; or
(2) an appeal against the Huntingdon assessments and closure notices.
[12] In my view the better analysis, based on the documentary evidence before me, is that the letter of 10 February 2021 is a request for an extension of time with regard to the Huntingdon Assessments and Closure Notices, to which Officer Charles agreed, as set out in 11(1) above, and HMRC must therefore accept the 8 July 2021 appeal against the Huntingdon Assessments and Closure Notices." (Abbey Healthcare (East Kilbride) Limited v. HMRC [2025 UKFTT 822 (TC), Judge Snelders)
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- Where late appeal to HMRC, the delay is to the point when notified to HMRC - no statutory time limit for asking Tribunal to grant permission
"[16] HMRC extended the statutory time limit for the Applicants to appeal against the ETL Assessments until 31 January 2021. The request for permission to make a late appeal to HMRC was submitted on 8 July 2021, over 5 months late. This is clearly a serious and significant delay in the context of a 60 day time limit." (Abbey Healthcare (East Kilbride) Limited v. HMRC [2025 UKFTT 822 (TC), Judge Snelders)
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Assessing seriousness
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- Not all delay is the same (e.g. incomplete appeal notice filed in time)
"[26] As to stage 1 of the Martland approach, this is not simply an exercise in mathematics; there is a large element of context. First, the only defect was the failure to attach the decisions appealed against. Secondly, the Respondents were copied to the email lodging the original NOA and were therefore aware that the Appellant intended to appeal the decision. This was not a case in which for instance the Respondents had long ago closed their case file and would have to reopen it. Thirdly, it took the Tribunal from 14.2.25 – 3.3.25 to reject the NOA. That accounts for the majority of the delay. Fourthly, whilst the Respondents criticised the Appellant's representative for a delay of 3 days in resubmitting the NOA, Mr. Atkins has explained the delay. Far from simply sitting on his hands we are satisfied that Mr. Atkins was taking steps to resolve the issue. We do not find the delay of 17 days in this particular case to be serious or significant." (Figa Store Limited v. HMRC [2025] UKFTT 1260 (TC), Judge Watkinson)
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HMRC not under duty to tell taxpayer they need to file Notice of Appeal
"[25] I agree with [HMRC] that HMRC are under no duty to tell a taxpayer - especially one that is professionally represented - that they need to file a Notice of Appeal with the Tribunal within 30 days of the date of the review conclusion letter, and that notifying HMRC of their intention to appeal to this Tribunal does not excuse a subsequent failure to file the Notice of Appeal.
[26] But, even if HMRC were not under a duty to notify MPTL of the appeal process, in fact they had notified MPTL and the accountants of the procedure for appealing in the final paragraphs of the review conclusion letter." (MPTL Limited v. HMRC [2022] UKFTT 472 (TC), Judge Aleksander)
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VAT appeal not late if it does not include hardship application
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"[32] From the cases referred to above, it seems to me to be clear that the under both FA72 and VATA94 the fact that an appeal cannot be entertained does not mean that it has not been validly made. It does not seem to have been argued in the cases that a tribunal entertained an appeal when it received and acknowledged a notice of appeal. The cases, in particular Hubbard, suggest that the tribunal only begins to entertain an appeal when it lists it for hearing...
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[36]...It seems to me that section 84(3) VATA and rule 22(1) are entirely consistent with the authorities which I discuss above in making a distinction between making an appeal and entertaining or proceeding with an appeal. For reasons set out above, I consider that starting proceedings is not the same thing as entertaining or proceeding with an appeal.
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[39] In summary, I have decided that SNMP’s appeal in 2017 was made in time and, notwithstanding the fact that the disputed tax was not paid and no application for hardship was made at that time, it was a valid notification of the appeal..." (SNM Pipelines Limited v. HMRC [2022] UKFTT 231 (TC), Judge Sinfield)
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Reliance on an adviser​
- Failure of adviser usually attributed to taxpayer
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"[36] Standing back, I note that there has been a delay of 59 days for reasons which are described by Ms Fichardt as being a “mistake”. I have found that there was no good reason for the delay. I have also found that MPTL cannot distance itself from the failure by its then accountants to file the Notice of Appeal on time.
[37] As regards all the other circumstances, I find that they are not such as to persuade me to grant permission particularly once I take into account the particular importance of the need for statutory time limits to be respected, given the absence of any good reason for the delay." (MPTL Limited v. HMRC [2022] UKFTT 472 (TC), Judge Aleksander)
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"[79]...However, as the Upper Tribunal said in and Katib v HMRC [2019] UKUT 189 (TCC) (‘Katib’) at [49] (their emphasis):
“We accept HMRC’s general point that, in most cases, when the FTT is considering an application for permission to make a late appeal, failings by a litigant’s advisers should be regarded as failings of the litigant.”
[80] The UT returned to this issue at [54], saying:
“It is precisely because of the importance of complying with statutory time limits that, when considering applications for permission to make a late appeal, failures by a litigant’s adviser should generally be treated as failures by the litigant.”
[81] The UT then cited the Court of Appeal’s judgment in Hytec Information Systems v Coventry City Council [1997] 1 WLR 666 (“Hytec”). Ward LJ, giving the leading judgment, said at p 1675:
“Ordinarily this court should not distinguish between the litigant himself and his advisers. There are good reasons why the court should not: firstly, if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent...”
[82] We do not consider that there is anything in the procedural background to this case that takes it out of the ordinary or provides a satisfactory reason for the delay." (Gill v. HMRC [2022] UKFTT 368 (TC), Judge Sinfield)
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"[86] For her part, Ms Davies relied on Katib, where the UT said at [49] (their emphasis):
“We accept HMRC’s general point that, in most cases, when the FTT is considering an application for permission to make a late appeal, failings by a litigant’s advisers should be regarded as failings of the litigant.”
[87] The UT returned to this issue at [54], saying:
“It is precisely because of the importance of complying with statutory time limits that, when considering applications for permission to make a late appeal, failures by a litigant’s adviser should generally be treated as failures by the litigant.”
[88] The UT then cited the Court of Appeal’s judgment in Hytec Information Systems v Coventry City Council [1997] 1 WLR 666 (“Hytec”). Ward LJ, giving the leading judgment, said at p 1675:
“Ordinarily this court should not distinguish between the litigant himself and his advisers. There are good reasons why the court should not: firstly, if anyone is to suffer for the failure of the solicitor it is better that it be the client than another party to the litigation; secondly, the disgruntled client may in appropriate cases have his remedies in damages or in respect of the wasted costs; thirdly, it seems to me that it would become a charter for the incompetent...”
[89] I agree with Ms Davies that in accordance with Katib and Hytec the Tribunal should not normally find that a person’s reliance on his adviser provides a good reason for delay. I considered whether the facts of Mr Miah’s case took him outside that normal range, and decided that they did not. That is because:
(1) Mr Miah was sent Ms Smith’s statutory review decision. This set out the amounts due for the years 2012-13 through to 2016-17 and included his right to notify the appeal to the Tribunal within 30 days. Mr Miah would thus have been aware of that deadline.
(2) There was no evidence of any communications between Mr Miah and Ms Rahman at any point, for instance, asking what had happened and whether she had notified the appeal.
(3) There was no evidence before the Tribunal as to Mr Miah’s position during the nine month period after the statutory review decision.
[90] I therefore find that Mr Miah’s reliance on Ms Rahman and/or Tax Resolute does not provide him with a good reason for the delay." (Miah v. HMRC [2022] UKFTT 228 (TC), Judge Redston)
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- Failure by adviser to check whether written appeal submitted not attributed to taxpayer
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"[64] As to whether Mr Huntly’s error could have been uncovered earlier by Independent Tax, I accept that the covid working restrictions from mid-March to July 2020 impeded the work of Independent Tax. The employee engaged to look after Mr Huntly and the nine other off-shore workers had treated Mr Huntly as if he had made a written appeal. There is in my opinion nothing Mr Huntly could have done to prevent this error by the employee of Independent Tax. The failure ought not to be attributed to Mr Huntly, he did all he could to comply with his obligations by appointing a legitimate and reputable firm of tax accounting advisers. Mr Huntly only became aware of the need to file a written appeal in July 2020 at the same time as Mr Rippon. I consider that Mr Huntly acted as quickly as he was able having regard to his capabilities." (Huntly v. HMRC [2022] UKFTT 135 (TC), Judge Gething)
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- Failure of adviser to inform T of decisions reduces seriousness
"[111] ​So failure to make a timely appeal by the appellants' agent is a failure by the appellants. And thus, cannot be seen as a "good" reason why the first appellant [112] The failure, however, is more acute if the appellants themselves were aware of the assessments, by virtue of the fact that the agent had sent them to the appellants.
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[123] But equally, I have found that the agent did not transmit either the relevant letters or the tax assessments to the appellants, and that the first time that the appellants discovered that the agent had failed to make timely appeals against the assessments was on 5 December 2022. And the appeal was made the following day." (YT Medical Limited v. HMRC [2024] UKFTT 496 (TC), Judge Popplewell)
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- Query whether attributing failures to taxpayer restricts access to justice
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"[37] The position is a fortiori in so far as article 6(1) is directly applicable in Mr Halligen's case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair "the very essence of the right" of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and fourteen days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be "a reasonable relationship of proportionality between the means employed and the aim sought to be achieved"." (Lukaszewski v. District Court in Torun [2012] UKSC 20)
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LATE APPEAL PERMITTED
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- Late notice of HMRC's decisions
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"[87] But I have accepted that the appellant was not notified, on a timely basis, of the issue of the penalty notifications/surcharge determinations, which, in the majority of cases, only came to his attention on 20 October 2017. And he then made an appeal within 30 days. This is the significant factor in my evaluation and weighs heavily in the appellant's favour. If he was unaware of the penalties, he could not have appealed against them." (Crawford v. HMRC [2024] UKFTT 957 (TC), Judge Popplewell)
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- HMRC fail to set out appeal rights/time limits adequately
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"[65] The Tribunal is influenced by the final sentence of paragraph 37 of the Upper Tribunal’s decision in NT ADA already quoted at paragraph 27 above:
“As already indicated, a failure by HMRC to provide adequate notification of appeal or review rights in the decision letter could also influence the exercise of the FTT’s discretion to admit a late appeal.”
[66] We consider the advice given by HMRC in their decision letters was confusing. The encouragement to lodge appeals given by HMRC officers during the meetings and telephone calls led the Company to believe that its agents had lodged appeals. This is supported by the fact that HMRC’s Debt Department did not write to the Company until 13 September 2019. HMRC had advised the Company that it would not take any action to collect the disputed tax while the reviews of the decisions were being carried out. In the absence of any demands from HMRC the Company was entitled to believe the decisions were under appeal.
[67] The amount of VAT at stake is considerable (£631,548.43). We consider the prejudice to the Company if the appeals are not allowed to proceed outweighs any prejudice to HMRC.
[68] The application to allow the two appeals dated 24 September 2019 is successful." (Transwaste Recycling and Aggregates Limited v. HMRC [2022] UKFTT 4 (TC), Judge Rankin)
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“I do not think this vitiates the assessment, but had HMRC not accepted (whether by mistake or not) that the appeals were not late, despite saying originally that they were, I would have granted permission for late appeals to be made to HMRC on the sole basis that the assessment was in error in not indicating the time for appeal. A reference to the appeals part of HMRC’s website is not good enough.” (Bhatti v. HMRC [2018] UKFTT 67 (TC), §53, Judge Richard Thomas).
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“Mr Haley conceded that if we were to find that the letter dated 18 September 2006 was a claim and it had been rejected by the letter dated 18 December 2006 then HMRC would not object to an application for permission to appeal out of time. The basis for that concession was that the letter dated 18 December 2006 did not set out the appellant’s rights of appeal, and in the letter dated 21 January 2011 the appellant had been given 30 days in which to appeal.” (Websons (8) Ltd v. HMRC [2013] UKFTT 229 (TC), §23).
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- Erroneous belief that appeal could be pursued in existing proceedings
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“However, in deciding whether to grant permission to bring a late appeal, the Tribunal can take into account, in determining the reasons why the appeal has been brought late, that the Appellant quite reasonably thought that it was open to it to challenge the new decision of HMRC in the earlier appeal proceedings, without having to commence a new Tribunal appeal. This belief of the Appellant, whether right or wrong as a matter of law, was understandable in the particular circumstances of this case for a number of reasons.” (Newcastle Under Lyme College v. HMRC [2018] UKFTT 98 (TC), §75, Judge Staker).
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- Mistaken belief that appeal made
[62] Following the guidance in the UT in Perrin, in considering whether the excuse for the delay is reasonable the Tribunal must take into account the attributes of the taxpayer. I accept Mr Huntly was inexperienced and unfamiliar with tax appeals. He was understandably panicked by the assessments and failed to read properly the letters of 27 November 2018 which set out his rights of appeal but after the call with Officer Bromley in which he advised her there must have been a mistake he believed he had made an appeal. He was unemployed and desperately seeking new employment. He had a wife and sone to provide for, I consider that Mr Huntly had a reasonable excuse for failing to file a written notice of appeal within 30 days of the assessments." (Huntly v. HMRC [2022] UKFTT 135 (TC), Judge Gething)
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- Mistaken belief that decision covered by existing appeal
"[40] We must next establish the reasons for the delay and evaluate all the circumstances of the case, assessing the merits of the reasons and the prejudice caused to the parties by granting or refusing permission. The reason for the delay was that, as described above, Mr Baskararajulu was waiting for HMRC to respond to his appeal of the £100 penalty, and thought that his appeals of the £300 and £900 penalties would be included as a continuation of the same appeal process. For a taxpayer with Mr Baskararajulu’s experience and attributes, we consider that this was a reasonable conclusion for him to have reached." (Baskararajulu v. HMRC [2023] UKFTT 430 (TC), Judge Gauke)
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- Mistaken belief that assessments in abeyance pending criminal investigation
"[50] Applying the Martland criteria described above, we first consider that the delay of approximately four years was significant and serious. Secondly, as we have already found, we consider that there was a good reason for the delay because Octagon reasonably formed the impression that the Landfill Tax assessments were being held in abeyance until the conclusion of the criminal proceedings and, specifically, that that impression held true in respect of the need to request a review or file an appeal.
[51] Thirdly, considering all the circumstances of the case, we accept the finding of the FTT that Octagon’s case was neither very strong nor very weak. We also accept that Octagon would suffer considerable prejudice if it were not able to contest the Landfill Tax assessment of some £57m. On the other hand, we accept that HMRC does suffer some prejudice by having to contest an appeal which it thought had been concluded, albeit that that prejudice is somewhat self-inflicted: HMRC should have realised that its statements to Octagon in September, October and November 2016 were, at the very least, ambiguous. Moreover, the extent of the prejudice suffered by HMRC in having to contest what is probably a fact-intensive appeal in respect of the Landfill Tax assessments is reduced by the knowledge that essentially the same factual matrix is already under appeal in relation to the VAT assessments. Therefore, considering all the circumstances and bearing in mind the need to observe time limits, we consider that the balance lies in favour of Octagon." (Octagon Green Solutions Limited v. HMRC [2023] UKUT 268 (TCC), Judges Rupert Jones and Brannan)
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- Repeated unsuccessful attempts to notify appeal
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"[18] In relation to the daily penalties and the late tax penalties the appeal is 137 days late. Such delay is serious and significant. However, Mrs Gatward made ongoing efforts to appeal from the moment she received her penalty notice in March 2019. She was prohibited from doing so by the refusal to accept the appeal. Once the review was concluded in December 2019, she then made repeated efforts to appeal to the Tribunal from January 2020 onwards. Her appeal was not in the proper form or addressed properly to the Tribunal, despite clear information on how to do so in letters received from HMRC, but I accept that she made comprehensive and reasonable efforts to bring the appeal." (Gatward v. HMRC [2020] UKFTT 363 (TC), Judge Hudson)
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- Poor health and continuing efforts to communicate justify long delay
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“So, applying Data Select, and taking into account BPP, I have duly considered the various factors and all the relevant circumstances. The failure to comply with the statutory time limit, given its clear purpose, and the length of the delay weigh heavily in favour of refusing to extend time. However, the reasons for the delay, particularly the ongoing effect of the various health-related issues, do in my judgment amount to a “good explanation”, taking into account the continuing efforts of Ms Rowledge to communicate with HMRC and object to the Assessment. In terms of the consequences for the parties, while an extension of time would prejudice HMRC in having to re-open a closed file, a refusal to extend time would cause very serious consequences indeed for Ms Rowledge.” (Rowledge v. HMRC [2016] UKFTT 556 (TC), §37).
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- Misunderstanding appeal requirements combined with short delay
“We found that the reason for the delay was that Mr Thoene did not carefully read the appeal requirements, despite these being explained to him by HMRC and the Tribunals Service. However, the period of delay was relatively short; HMRC did not object to the late appeal and the prejudice to Mr Thoene in not being able to appeal was significant…Having considered and balanced these factors in the light of the guidance given by Data Select and BPP, we decided it was in the interests of justice to allow Mr Thoene to appeal to the Tribunal.” (Thoene v. HMRC [2016] UKFTT 454 (TC) §§15…16).
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- Difficulties reading that HMRC were aware of meaning appeal rights not understood
"[60] We accepted the evidence, which was not challenged, that the Appellant struggles with reading and writing. It was clear from the correspondence within the bundle that the Appellant had informed the Respondents of his difficulties, and we were satisfied that this was also clear from the content of that correspondence. In such circumstances, we accepted that Mr Stoney had not understood the contents of the (often lengthy) letters sent to him which set out his appeal rights.
[61] We noted that the Appellant was provided with Officer Bromley's contact details and could have made contact to enquire about appeal rights. However, in circumstances where Mr Stoney believed the Respondent's decision to be final, we were satisfied that he had no reason to do so. Our conclusion was reinforced by the evidence of Mr Stoney, which was supported by the records of telephone calls contained within the bundle, that his conversations with the Respondents were directed towards repayment and payment plans and not his appeal rights." (Stoney v. HMRC [2025] UKFTT 850 (TC), Judge Dean)
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- HMRC review conclusion indicating HMRC not reached final decision
"[26] However, leaving that aside, it is in any event plain from the ongoing correspondence between the parties which ensued following the issue of the review conclusion letter that the Respondents were still gathering information over that period and had not yet concluded that the position which it had adopted in the review conclusion letter was one behind which it was going to stand. For instance, in their letter of 15 June 2021, the Respondents said that their final decision on the matter would depend on the information which they subsequently received from GT. And then, in both their letter of 12 August 2021 and their letter of 2 September 2021, after they had received that information and concluded that they did wish to stand behind the conclusion set out in the review conclusion letter, the Respondents indicated to the Appellant that he had thirty days following the receipt of the relevant letter in which to notify his appeal to the FTT. In the event, the date on which the Appellant notified the FTT of his wish to appeal against the assessment was only a week after the later of those two letters.
[27] In the circumstances, we are satisfied that, in this case, the failure on the part of the Appellant to notify his appeal to the FTT within the thirty-day time limit is entirely understandable. When we take into account the relative brevity of the delay, the reasons for that delay, the extreme prejudice to the Appellant in our not entertaining the appeal and the much more limited prejudice to the Respondents in our doing so, we think that it is hard to conceive of a more appropriate situation in which to exercise our discretion to permit the late appeal. The Respondents have recognised this in declining to object to the late notice and we think that they were right to do so. We therefore hereby exercise our discretion to hear the appeal despite the late notice to the FTT."
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- HMRC review conclusion indicating HMRC not reached final decision
"[26] However, leaving that aside, it is in any event plain from the ongoing correspondence between the parties which ensued following the issue of the review conclusion letter that the Respondents were still gathering information over that period and had not yet concluded that the position which it had adopted in the review conclusion letter was one behind which it was going to stand. For instance, in their letter of 15 June 2021, the Respondents said that their final decision on the matter would depend on the information which they subsequently received from GT. And then, in both their letter of 12 August 2021 and their letter of 2 September 2021, after they had received that information and concluded that they did wish to stand behind the conclusion set out in the review conclusion letter, the Respondents indicated to the Appellant that he had thirty days following the receipt of the relevant letter in which to notify his appeal to the FTT. In the event, the date on which the Appellant notified the FTT of his wish to appeal against the assessment was only a week after the later of those two letters.
[27] In the circumstances, we are satisfied that, in this case, the failure on the part of the Appellant to notify his appeal to the FTT within the thirty-day time limit is entirely understandable. When we take into account the relative brevity of the delay, the reasons for that delay, the extreme prejudice to the Appellant in our not entertaining the appeal and the much more limited prejudice to the Respondents in our doing so, we think that it is hard to conceive of a more appropriate situation in which to exercise our discretion to permit the late appeal. The Respondents have recognised this in declining to object to the late notice and we think that they were right to do so. We therefore hereby exercise our discretion to hear the appeal despite the late notice to the FTT." (Newfield v. HMRC [2024] UKFTT 116 (TC), Judge Beare)
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- One week late, correspondence with HMRC continuing
"[64] For the above reasons, I am firmly of the view that this is a case where the exercise of my discretion in favour of the Appellant is justified. That is not to say that I do not agree with Mr MacDonald that the Appellant made a mistake in not pursuing a twin-track approach of attempting to locate the fraudulent supplier while at the same time making its appeal. The Appellant could, and indeed should, have done that. But I believe that a refusal to allow the Appellant to continue with its appeal for that reason alone would be a draconian punishment for something which was no more than a mistake made in good faith and which did not lead the Respondents to think that the Appellant no longer wished to challenge the conclusions set out in the review letter." (Snapcrest Ltd v. HMRC [2020] UKFTT 320 (TC), Judge Beare)
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“In this case I have considered carefully the Appellant’s explanation for its delay of one week. Mr Dons’s explanation, that he did not realise that the time limit was running while he was still in correspondence with the Respondent, is consistent with his behaviour in emailing the Respondent on 30 May 2016. Although the deadline for appealing was clearly stated by the Respondent’s officer in the letter of 12 May 2016, I accept that the Appellant was confused by the Respondent’s offer to consider fresh evidence. I accept that the Appellant did not appreciate that its proposal to remove the adaption did not constitute fresh evidence, and so the time for appealing had begun to run.” (Bacabo Auto En Truch Verhuur v. Director of Border Revenue [2017] UKFTT 595 (TC), §17, Judge Bailey).
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- HMRC knew their decision was being challenged
[16] The assessment to tax was sent to the correct KPMG office, and was duly appealed on 28th December. The appeal against the assessment raised the question of the availability of the losses for payment arising from commissions paid in the year of account, and in consequence, the Inspector knew within time that his decision about the non-availability of those losses was being put in issue by the taxpayer.
[17] Those losses and whether or not they are allowable would be in issue in exactly the same way in any appeal from the loss determination. The Revenue can point to no relevant prejudice to the public finances if this appeal is allowed to be lodged out of time.
[18] By contrast, the taxpayer's case as to whether or not he has to pay tax for that year of account will be irremediably prejudiced if, simply by having failed for what appears to be explainable reasons to lodge the appeal in time, those losses are disallowed without any enquiry as to whether they were in fact properly allowable.
[19] For these reasons it seems to me that this is the paradigm example of circumstances where the General Commissioners should have used what I have found to be their more extensive discretion than that of the Inspector, conferred by section 49 subsection 1 of the Taxes Management Act, to extend time for the taxpayer to lodge an appeal against the loss determination." (R (oao Browallia Cal Ltd v. General Commissioners of Income Tax [2003] EWHC 2779 (Admin) Evans-Lombe J)
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"[17] This is very finely balanced. We cannot see how HMRC will be genuinely prejudiced if this application is granted. It is not as though they have shut their file, and the resources needed to proceed with this appeal will simply be deployed now rather than at an earlier period which would have been the case had the appellant appealed in time. Furthermore, HMRC were on notice that the appellant intended to bring an appeal. Mr Helle had specifically told HMRC this in correspondence.
[18] As regards the appellant's attitude towards the tribunal's rules and procedure, we do not consider that the actions taken by Mr Helle in seeking to secure the company's legal position for bringing appeal, demonstrate any disrespect. It is true that he could have put in a protective appeal and then considered the merits thereafter. But we can understand why he did what he did.
[19] Indeed, it is to Mr Helle's credit that he sought to clarify the position by engaging with HMRC, something which HMRC often criticise taxpayers for failing to do in other cases.
[20] And we accept the evidence that as soon as Mr Helle received clarity from HMRC which he interpreted as indicating that he could obtain recovery of the input tax in dispute, he immediately submitted an appeal. This demonstrates to us a commendable engagement with the appeal process." (Dual Homes and Land Limited v. HMRC [2025] UKFTT 523 (TC), Judge Popplewell)
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- Appeal letter sent within appeal window but not received in time due to postal strikes
"[28] As regards stage 2 it, appears, and HMRC do not factually challenge, that the appeal letter was sent on 28 November 2022. It was therefore sent within a time frame that the CPR would permit an assumption that it would have been received on 29 November 2022 (the next working day after 28 November 2022). In fact, there were postal strikes on 24, 25 and 30 November and 1 December 2022. I therefore infer that despite the letter being posted on a Monday in a window when the strikes were not operational, there was a postal delay which caused it to be delivered after the expiry of the 30-day time limit. In my view that is a reasonable explanation for the delay." (Fidler v. HMRC [2024] UKFTT 946 (TC), Judge Brown KC)
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- Defective attempt to appeal in time
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"[29] The delay was not serious or significant in the circumstances. The Respondents were aware, within the statutory time period for making an appeal, that the Appellant wished to appeal. We do not accept that the Appellant's appeal is very weak. The Grounds of Appeal are, in our view, clear. They assert that for a proportion of the imports the preferential origin treatment was in fact available because supplier declarations were held. As to the evidence in support of that argument, this is not a proper application on which to carry out a detailed analysis of the prospects of success. We conclude that the merits of the Appellant's case are neither very weak, nor are they very strong. We do not accept that there is limited prejudice to the Appellant because it mainly sought to appeal to enter into ADR. The effect of refusing permission to make a late appeal is that it cannot appeal at all. It will not be able to enter ADR, but nor will it be able to challenge the C18 demand by a statutory appeal. There is no real prejudice to the Respondents in permitting the application. They have always been aware that the Appellant wished to appeal against the C18. By contrast, refusing the application will be terminal for the Appellant's appeal against a C18 of £1,052,965.00. As to the latter point; ever was it thus, but we do take it into account. Bearing in mind the relatively short delay, the otherwise compliant original NOA, and the absence of real prejudice to the Respondents, we allow the application applying the approach in Medpro." (Figa Store Limited v. HMRC [2025] UKFTT 1260 (TC), Judge Watkinson)
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"[36] Having considered all of the evidence, cumulatively, we are satisfied that the balance between the prejudice to the Appellant, the prejudice to HMRC and the administration of justice through the finality of litigation falls firmly on the side of an extension of time being allowed. This is because we are satisfied that the Appellant rectified the error in respect of the wrong appeal form being used in a timely manner, and clearly intended to challenge the decision immediately upon receipt of the penalty notice. We have balanced the competing interests and the arguments presented by the parties." (Cohen v. HMRC [2024] UKFTT 707 (TC), Judge Manyarara)
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- Common ground that assessments were excessive
“While we appreciate the importance of time limits being respected, our decision on the alternative point is that the Appeal should in any event proceed. Our reasons for this decision were that it appeared to be virtually common ground that the assessments in question were not only estimated assessments, but quite naturally ones that were likely to be excessive. There had been various intimations that if the assessments were now simply confirmed, the Appellant might be made bankrupt. There was also evidence on the file that the Appellant had earlier used two different firms of accountants, and without our knowing where the fault lay, the Appellant claimed that he had been let down by those accountants, and certainly one at least had failed to respond to numerous letters from HMRC. Finally we noted that both the Appellant and his current accountant had appeared before us, the latter making it clear that full figures had already been prepared for all the earlier years in question. On the basis therefore that it would be manifestly unfair to render it likely that the Appellant would be made bankrupt by assessments that may well have been excessive, and that the Appellant and his accountant were now ready to provide all requested figures, the Appellant confirming that he would then pay the tax shown to be properly owing, we decided to allow the appeal to proceed out of time, were our earlier decision that there was already an open appeal wrong.” (Elazoua v. HMRC [2014] UKFTT 75 (TC), §7, Judge Nowlan).
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- Internal inconsistencies in decision + HMRC themselves adjusting the decision/not treating as final
"[75] Fourthly however, since LL Ltd submitted its application to make a late appeal to the Tribunal, HMRC have exercised their collection and management powers to allow a repayment of £42,321.84, which is a significant proportion of the input tax claimed, having originally submitted in the response to the appeal that an appeal out of time limited to that sum should be permitted. When Mr Corps was asked how the important principle of finality in tax proceedings should be applied in circumstances where HMRC had itself originally accepted that there should be an appeal, albeit limited to the sums set out in their Notice of Objection to the Application if the parties were not able to come to an agreement, and revisited the repayment of input tax due to LL Ltd some two days before the hearing. Mr Corps submitted that HMRC only wanted to collect the tax that was due and that with this payment there was no further input tax repayable to LL Ltd, so permission to submit the late appeal should not be granted. It seemed to us that HMRC's decision dated 13 October 2023 was, in the particular circumstances of this case, not as final as many other decisions made by HMRC.
[76] Fifthly, for the detailed reasons given in paragraph 15 above, there is an important internal inconsistency in the Decision Letter. The Decision Letter stated that inputs of £46,154.67 would be allowed, but only £491.86 was in fact allowed. It is not apparent, from the information before us, how the figure of £46,154.67 set out in the Decision Letter related to the repayment made to LL Ltd by HMRC on 8 September 2025. This suggests that there is a real possibility that there may be merits in any appeal. We could not conclude that either party's case was particularly weak or strong. We do consider, however, that the internal inconsistency in the Decision Letter is a matter that ought to be resolved by the FTT Tax.
[77] Sixthly it is not apparent that the delay from January 2024 until October 2024 has caused HMRC any prejudice, this is because HMRC has by its own volition revisited and adjusted the inputs, albeit prompted by the application to appeal out of time." (Lands Luo Limited v. HMRC [2025] UKFTT 1207 (TC), Dingemans LJ and Judge Snelders)
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- Late appeal would be bound to succeed
"[77] In our view, although we do not find Ms Marfo’s reasons for delay to be particularly compelling, this must be balanced against the plain injustice that would arise if she were prevented from proceeding with an appeal which (on the basis of the law as it presently stands) would be bound to succeed.
[78] We appreciate that there may be circumstances where the length of the delay and need for finality may outweigh the injustice of preventing an overwhelming case from proceeding. For example, there may be cases where a taxpayer seeks to reopen a long-forgotten matter as a result of a court decision taking place some years after the event. However, that is some distance from the facts in the present case." (Marfo v. HMRC [2022] UKFTT 289 (TC), Judge Frost)
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- Obvious weakness in HMRC's case due to no explanation of alleged carelessness + double taxation
"[36] The discovery assessments make no mention of carelessness. We were provided with no evidence justifying why HMRC considered the appellants to have behaved carelessly when submitting their tax returns. This is a considerable weakness in HMRC's case. It may well be that they have some evidence but it was not provided to us. Again, we take judicial notice that it is reasonably common that when HMRC issue a discovery assessment relying on an extended time limit they will, at the same time, either in the same letter, or a covering letter, explain why they are alleging carelessness against a taxpayer. No evidence that this was provided to the taxpayers has been provided in this case. There is no evidence that HMRC have issued penalties for careless inaccuracies in the appellants' tax returns.
[37] These are obvious weaknesses in HMRC's case.
[38] There is also an obvious strength in the appellant's assertion that Mrs Stenhouse should not be taxed and there is effective double taxation by dint of the fact that the discovery assessments tax her, and Mr Stenhouse, on the same income.
...
[44] We have reached the conclusion that the obvious strengths and weaknesses outweigh (but only just) the delays and reasons given for them." (Stenhouse v. HMRC [2025] UKFTT 820 (TC), Judge Popplewell)
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- VAT security late appeal allowed: prejudice to taxpayer particularly significant due to giving rise to criminal conduct
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“While, on the basis of what is before us at this hearing today, and taking account of the Tribunal’s more limited jurisdiction in VAT security matters, it does not appear to us that the appellant has a high probability of success we take into account the severity of outcome in terms of Ms Mitreska’s exposure to criminal proceedings if the appellant is not allowed the chance to challenge the VAT security decision. The length of delay is not insignificant, but the combination of the fact the appellant does have some explanation for the delay and the prejudice in terms of the potential criminal liability faced by Ms Mitreska does we think outweigh the prejudice that arises to HMRC. We think it is in the interests of justice for the appellant to be allowed to have its appeal heard.” (Helianthus (London) Ltd v. HMRC [2014] UKFTT 52 (TC), §52, Judge Raghavan).
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- One alternative assessment not appealed because it was wrongly believed to be correct
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“The argument of counsel for the taxpayers was that Mr Coren could not in good conscience have appealed against the assessment for capital gains tax because he had always accepted that the gains were capital gains…Counsel for the taxpayers submitted that on the proper construction of that section they could not put forward a reasonable excuse which they had when they received the assessments which he says was the relevant time. He may be right in his construction that the relevant excuse must be one which they had when they got the assessments; but to my opinion they appear to have had (although that will be for the commissioners to decide) a sound excuse, namely that they thought they were only liable for capital gains tax and not for income tax.” (Bye v. Coren [1986] STC 393 at 395 - 396 per Lawton LJ).
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- Late appeal same as existing appeals
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"[51] Thirdly, considering all the circumstances of the case, we accept the finding of the FTT that Octagon’s case was neither very strong nor very weak. We also accept that Octagon would suffer considerable prejudice if it were not able to contest the Landfill Tax assessment of some £57m. On the other hand, we accept that HMRC does suffer some prejudice by having to contest an appeal which it thought had been concluded, albeit that that prejudice is somewhat self-inflicted: HMRC should have realised that its statements to Octagon in September, October and November 2016 were, at the very least, ambiguous. Moreover, the extent of the prejudice suffered by HMRC in having to contest what is probably a fact-intensive appeal in respect of the Landfill Tax assessments is reduced by the knowledge that essentially the same factual matrix is already under appeal in relation to the VAT assessments. Therefore, considering all the circumstances and bearing in mind the need to observe time limits, we consider that the balance lies in favour of Octagon." (Octagon Green Solutions Limited v. HMRC [2023] UKUT 268 (TCC), Judges Rupert Jones and Brannan)
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"[34] However, the Applicants accept that the figures assessed in the ETL Assessments are correct and the Abbey Healthcare Companies are not appealing against the closure notices. The Applicants only challenge the facts on which HMRC rely to issue the ETL Assessments so long after the end of the accounting periods to which they relate. The facts that will need to be established to decide this issue are largely the same as those that will need to be determined in the penalty appeals. In that context the prejudice to HMRC in allowing the Applicants permission to make their appeals to HMRC out of time is much reduced because HMRC will not be put to a great deal of additional work in litigating these appeals than they are anyway having to do in the context of the penalty appeals." (Abbey Healthcare (East Kilbride) Limited v. HMRC [2025 UKFTT 822 (TC), Judge Snelders)
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“Taking into account the circumstances as a whole I consider that the fairest way to deal with this application is to give the Appellant permission to appeal the status of Mr Smith for 2012-13 where the status of Mr Black is already in issue.” (George & Dragon (Aysgarth) Limited v. HMRC [2017] UKFTT 461 (TC), §51, Judge Cannan).
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“Despite the majority of the factors weighing against the appellant, we considered that in the circumstances of hearing seven other appeals on the same issue and determination of the eighth appeal requiring no further time or resources, the lack of substantial prejudice to HMRC should weigh in the appellant’s favour.” (Drinks Stop Cash and Carry Ltd v. HMRC [2016] UKFTT 730 (TC), §122, Judge Rupert Jones).
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“Notwithstanding the reasons given by the respondents as to why we should not permit the late appeal, and the fact that no reasons were given by Mr Howard on behalf of Dr Montshiwa as to why we should do so, we do give Dr Montshiwa permission to appeal, and notify that appeal, out of time for the following reasons:
(1) Although the delay is considerable [13 months], no prejudice has been caused to the respondents, (nor will it be caused) by granting permission and hearing the appeal. HMRC have not submitted that there have been any wasted costs (or will be any wasted costs) associated with this late appeal. And there are, nor will there be, adverse consequences for the respondents by granting permission.
(2) If the appeal had been made and notified on time, we have no doubt that it would have been held over pending clarification of the claim for special relief. It would not have been heard independently of that claim. One reason for this is that the surcharges are calculated as a percentage of the tax due. If, therefore, this Tribunal decides (as it has) that the tax due should be reduced, then the surcharges must be reduced too. It is inconceivable that a Tribunal would hear an appeal against the surcharges independently of the hearing for the claim for special relief. In these circumstances, the appeal against the penalties would also be stood over in order that all the relevant issues could be heard at one time. So even if the appellant had made an in time appeal and notification against the penalties and surcharges, the hearing itself in relation to those two matters would not have taken place until now.
(3) We recognise that one reason for imposing time limits is to ensure that there is finality in litigation. But, as mentioned above, in the circumstances of this case finality as regards the penalties and surcharges would have had to wait until finality was achieved in respect of the special relief claim.” (Montshiwa v. HMRC [2015] UKFTT 544 (TC), §141, Judge Popplewell).
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But see contrary examples below.
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- Confusion and late appeal raises no new matters not already covered by existing appeals
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"[47] Having regard to all of the circumstances of the case, in particular a late appeal should not be admitted unless I am satisfied that, on balance, it should, and taking into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost with proper respect for the statutory time limits, I have come to the conclusion that, given the clear confusion that has arisen regarding the status of the 26 September Letters and 11 October Letter, with HMRC maintaining until the hearing that they contained "assessments" that, despite the delay, the appeal should be admitted out of time.
[48] In addition to that confusion, the new appeal in respect of Trenbe's 12/20 – 08/22 VAT periods does not raise any new matters that are not already in issue between the parties in the current proceedings which are at an early stage (there has been no exchange of evidence and the current appeals have not been listed)." (Trenbe UK Limited v. HMRC [2025] UKFTT 20 (TC), Judge Brooks)
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- Appeal would have been stayed behind higher appeal and merits strong: late appeal allowed
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“I have no doubt that even if the appellant had appealed those penalty notices in time, and then notified his appeal to the tribunal, that appeal would have been stayed pending the outcome of Donaldson and it would only have been once Donaldson had been decided that this appeal would have proceeded (as in the case of many thousands of appeals which have been dealt with by the First-tier Tribunal over the last six to twelve months) …So in fact nothing has been lost by the appellant's failure to appeal in time. It would have made very little difference to the timing of the hearing of the appeal. The principle of ensuring finality litigation has not been compromised to any, or any material, extent.” (Hinchliffe v. HMRC [2018] UKFTT 186 (TC), §30, Judge Popplewell but see Martland v. HMRC [2018] UKUT 178 (TCC)).
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- Appeal would have been stayed behind higher appeals and some reasons for delay
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"[25] (1). Once the circumstances have been identified, they must be balanced. The consistent message from Denton, Martland and Katib is that particular weight is to be given to two factors: (1) for litigation to be conducted efficiently and at proportionate cost; and (2) to enforce compliance with rules, practice directions and orders.
(2). The following factors favour allowing the Application:
(1) there are reasons for the delay;
(2) if the Application were to be refused, Mr Jordan would be required to pay HMRC £2501.00 which is a significant sum to him and his family;
(3) allowing the Application will have little impact on the litigation with HMRC, or on other Tribunal users, because of: (a) the appeal would be stayed behind the further appeal of Wilkes which is progressing in any event; and (4) the time already spent by HMRC considering the evidence and the issues involved in this appeal, to the extent of filing a Statement of Case would not be too onerous.
Of those three factors, I hold significant weight to the third.
On the other side of the scales is Mr Jordan's failure to meet the statutory time limit which is a matter of particular importance and the prejudice to HMRC in not reaching finality at this stage. However, I must also take into account that there were reasons for the delays and the contact which Mr Jordan had with HMRC by telephone.
[26] Having carried out the weighing exercise and giving due weight to the lateness, the balance clearly favours Mr Jordan, and I grant him permission to appeal." (Jordan v. HMRC [2022] UKFTT 12 (TC), Judge Fionagh Green)
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- Right to appeal concealed by employee responsible for defaults
“The explanation for the delay is a good one. The directors were not able to appeal as they did not know about it. We take on board Mrs Shepherd’s point that TDY was still able to appeal within time as Mr Triffitt was in fact authorised to deal with VAT matters. However, this does not take into account the important circumstance that he was concealing the position.” (The Damn Yankee Ltd v. HMRC [2016] UKFTT 768 (TC), §28(3), Judge Chapman).
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- Appeal by executor involving complex points of IHT where both parties were ready to address substantive appeal
“With the benefit of the points made to us by both parties we conducted the balancing exercise required of us in these circumstances. In the end we were persuaded to grant the Appellant’s application for the following reasons. Although the various delays were considerable the technical arguments were not at all straightforward, the Appellant had not been aware of what advice had been given to the Deceased nor what she had done after receiving that advice and the documents she entered into were not easy to understand. We noted that the Respondents dealt with the August 2014 IHT 200 after it was submitted to them without informing the Appellant that it was too late for him to raise the question whether or not the residential property had formed part of the estate of the Deceased. Both parties attended the hearing prepared to present their case that day without asking for further time. The work involved in presenting the case was very small compared with the time that had already been spent by both parties in preparing to do so. We found that the balance was in favour of allowing the Appellant to present his case. We could see very little disadvantage for the Respondents by the time the application was made to us and we granted the Appellant his application and moved on to consider the substantive appeal.” (Sussman v. HMRC [2016] UKFTT 523 (TC), §7).
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- Simple appeal where determining substantive appeal would take the same time as determining extension of time
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“This case took about two hours. In that time (or at least in half a day) we may well have been able to determine the substantive appeals and given finality to everyone.” (Massey v. HMRC [2016] UKFTT 616 (TC), §55).
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- Covid illness
"[33] I do not agree with Border Force that no good reason for the delay has been established or evidenced. There is a positive Covid-19 test demonstrating that the Appellant had Covid-19 on 22 February 2022. The documents on the Tribunal file show that the Appellant is middle aged, and I take judicial note of the fact that, the older a person is, the more likely it is that they will be adversely affected by Covid-19. I also consider it to be well-established that many people do suffer significant ill health after contracting Covid-19, and that there are people who do not appear to recover fully from Covid-19 years after first becoming infected. I agree with Border Force that the Appellant has not explained the precise nature of the symptoms he suffered, and I accept that Covid-19 is an illness with many symptoms. However, unless the Appellant had become so ill that he required hospital treatment (which is not suggested), I do not know what further medical evidence would be expected in a case of a slow recovery from an illness that is known to have no treatment. I do not see any reason to doubt that the Appellant was ill, as he stated, and that his ill health was such that he was prevented from making an appeal (in a language other than his mother tongue) until he had sufficiently recovered from Covid-19. In making this assessment, I have taken into account that the Appellant appears to have met other deadlines in time, both when he appealed to Border Force and when he sought a review from Border Force, and also in meeting the deadlines set by the Tribunal. That timeous action on other occasions adds credibility to the Appellant’s implied argument (which I accept) that he would have met the appeal deadline of 6 March 2022 had he not been taken ill on 22 February 2022 and remained ill for a time thereafter.
...
[39]...The period of delay is significant but the Appellant has provided a good reason for at least 29 of the 34 days of delay and I consider there is an explanation for the remaining five days. I have concluded that the balance of factors is in favour of the Appellant, and that he should be granted permission to make a late appeal. " (Mikalic v. DBF [2023] UKFTT 377 (TC), Judge Bailey)
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- T attempted to appeal in time using the wrong form
"[36] Having considered all of the evidence, cumulatively, we are satisfied that the balance between the prejudice to the Appellant, the prejudice to HMRC and the administration of justice through the finality of litigation falls firmly on the side of an extension of time being allowed. This is because we are satisfied that the Appellant rectified the error in respect of the wrong appeal form being used in a timely manner, and clearly intended to challenge the decision immediately upon receipt of the penalty notice. We have balanced the competing interests and the arguments presented by the parties." (Cohen v. HMRC [2024] UKFTT 707 (TC), Judge Manyarara)
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- T unaware of HMRC decision after unintentionally signing up for email notifications
"[28] Furthermore, we decided that signing up to the electronic notification process was unintentional and more likely to be as a result of confusion in the course of the submission process. We were reinforced in that conclusion by the fact that the Appellant appears to have done so on more than one occasion, apparently without having opted out in the interim. For this reason, we consider that the Appellant had good reason to believe that the bland e-mail messages being sent by HMRC were spam and/or phishing exercises and that it was reasonable for her to promptly delete them. As a result and particularly given the simple nature of her tax affairs, we find that the Appellant had good reason not to look at her PTA where the penalty notifications were being sent." (Howarth v. HMRC [2025] UKFTT 499 (TC), Judge Keith Gordon)
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LATE APPEAL DENIED
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- Honest belief that adviser was taking action but unreasonable failure to check whether this was the case
"[35] Having decided above that the reason for the delay was a genuine belief that RPC were acting on their behalf, I must consider whether, in this balancing exercise, that belief was a reasonable one such as to constitute a good reason for the delay. While it may be true that RPC were taking actions on their behalf through this long period, I note that the letter of 27 May 2022 expressly refers to the taxpayer's need to contact their advisers to discuss what to do next. This should have indicated to them that they should at least check that RPC were continuing to take the necessary actions." (O'Donnell v. HMRC [2024] UKFTT 587 (TC), Judge McGregor)
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- Three months late with no good reason (extension refused)
“We have reached the conclusion that in the circumstances of a delay of such significance and seriousness in making an appeal to the FTT with no good reason it would not be in the interests of justice to permit the appeal in relation to Decision 9 to proceed out of time.” (Romasave (Property Services) Ltd v. HMRC [2015] UKUT 254 (TCC), §99, Judges Berner and Falk)
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- Reliance on adviser’s assurances ceasing to be reasonable
“Against Mr Hall is the length of the delay; a period of nearly four years is by any standards “significant and serious”. Whilst that, in itself, would not necessarily be fatal if there was a good explanation for the delay, we consider that there came a point, long before January 2015, when it was no longer reasonable for Mr Hall to rely on Mr Harris’ assertions in the light of all the evidence pointing the other way. Mr Hall could and should have contacted the tribunal himself much sooner than he did. There accordingly came a point when the explanation ceased to be a good one. Whilst it is difficult to state any exact point at which Mr Hall’s reliance on Mr Harris ceased to be reasonable, this must have been the case by 5 September 2014 at the latest.” (Hall v. HMRC [2016] UKFTT 99 (TC) – permission refused)
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- Belated change of adviser leading to different advice - no extension after five month delay
“It seems to us that this is exactly the sort of situation that the time limit is intended to prevent from occurring. It cannot be right that a taxpayer who initially accepts an assessment and does not therefore appeal can take further advice months later and then try to lodge an appeal based on the new advice he has received.” (Rees v. HMRC [2016] UKFTT 784 (TC), §79, Judge Vos).
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- Could not afford to pay for adviser to file notice of appeal
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"Mr Benisi sought to explain part of the delay that had occurred in his case by asserting that he did not have sufficient funds at his disposal to enable him to instruct solicitors to file a notice of appeal at the right time. In my view shortage of funds does not provide a good reason for delay. I can well understand that litigants would prefer to be legally represented and that some may be deterred by the prospect of having to act on their own behalf. Nonetheless, in the modern world the inability to pay for legal representation cannot be regarded as providing a good reason for delay. Unfortunately, many litigants are now forced to act on their own behalf and the rules apply to them as well." (R (on the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, §43, applied in Rees v. HMRC [2016] UKFTT 784 (TC), §80, Judge Vos)
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- Failure to follow up mistaken belief that appeal submitted unreasonable, late appeal refused
“Even if the appellant mistakenly thought that his accountants had submitted an appeal against all assessments, it appears he did not take any action at all to follow up with them as regards what was happening with any such appeal. It lacks credibility that, in particular, given the large amounts of tax in issue, the appellant would not take any action to check with his accountant precisely what had been appealed and the outcome of that appeal.” (Khan v. HMRC [2017] UKFTT 731 (TC), §58, Judge Morgan).
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- Serious prejudice outweighed by delay and lack of good reason
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“I find there to have been a delay of over 10 months in notifying the appeal to the Tribunal, a delay which on any view is “serious and significant”. The explanation for the delay, such as it is, is extremely weak. The appellant will undoubtedly suffer significant prejudice if his appeal is not permitted to proceed, but after considering the length of the delay and weighing in the balance the reasons given for it and the prejudice which would potentially be suffered by both parties (depending on my decision), I am satisfied that this is a case in which the Tribunal’s discretion to admit a late appeal should not be exercised.” (Panter v. HMRC [2018] UKFTT 589 (TC), §29, Judge Poole)
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- Late appeal same as existing appeal (therefore no additional cost etc) outweighed by length of delay and lack of good reason
“In principle, it seems to us that the question whether permission should be granted should be determined independently of the position on other appeals and that they are of limited, if any, relevance. If a clear conclusion is reached that it is not appropriate to grant permission to bring a particular appeal on its own merits, taking account of all the circumstances relating to that appeal, we do not think it right that the result should change solely because, as a result of our decision on the other appeals, it could conveniently be heard with them. The existence or otherwise of related appeals ought not to be a material factor. If it were, then the question whether an appeal that would otherwise not be permitted to proceed could be allowed to do so could turn on the happenstance that, at the time the application is considered, there are appeals to which it might be joined. That would be capable of operating unfairly as between taxpayers in otherwise identical situations, some of whom have concurrent appeals and others of whom do not.” (Romasave (Property Services) Ltd v. HMRC [2015] UKUT 254 (TCC), §100, Judges Berner and Falk approved an applied in HMRC v. Sharya UK Ltd [2019] UKUT 143 (TCC) §106 “limited, if any, relevance”).
“It is true that (a) this [appeal] can be swept into the existing appeal without extra time or costs and (b) refusing a late appeal inevitably risks the payment of money which may not be due, but in my judgment these considerations are insufficient to outweigh the factors against giving permission, namely: the very significant length of the delay; the lack of any good reason for not appealing within the time limit and the need to ensure fairness as between taxpayers.” (Citipost Mail Ltd v. HMRC [2015] UKFTT 252 (TC), §79).
A fortiori where the similar appeal is not related to T
“Nevertheless, I do not consider that the fact that there are similar cases which may be appealed should be regarded as meaning that HMRC cannot be entitled to regard the matter as closed, nor should that fact mean that time limits can be breached.” (Martland v. HMRC [2016] UKFTT 717 (TC), §44, Judge Fairpo).
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- Overlap with existing appeal reduces prejudice but not sufficient
The overlap between the TEIDR Appeal and the matters which arise in the VAT Appeal and the Penalty Appeal means that I consider there would be less prejudice to HMRC in my granting permission for a late appeal than there would be if the other appeals had not been made. However, giving permission would nevertheless increase the resources HMRC has to devote to the various matters (in totality), and it cannot be said that there would be no prejudice to HMRC. HMRC will have to devote additional resources to the TEIDR Appeal, in circumstances where it had (reasonably) considered the Exclusion Decision to be final." (Sims Group UK Ltd v. HMRC [2024] UKFTT 194 (TC), Judge Zaman)
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- late penalty appeal not allowed where HMRC accept that penalty will be withdrawn if in-time substantive appeal succeeds
"[50] In evaluating all the circumstances, we accept on the limited information before us that, given the burden of proof, the appellant may have grounds in the Penalty/PLN appeals. As to whether being denied the opportunity to appeal would cause real prejudice, we note the seriousness of the issue for the appellants and the risk of prejudice. However, we note in accordance with Mr Kaney's "intrinsically connected" argument, that there is a substantial overlap of issues in the VAT Appeals and the Penalty/PLN Appeals, for example on deliberate behaviour. On that basis, some of the issues that the appellants would want to argue in the Penalty/PLN Appeals will be argued before the Tribunal in the VAT Appeals anyway. For example, we would expect the issue as to whether the invoices and/or bank statements were falsified would encompass Ms Adeosun's behaviour. Necessarily if NNN wins the VAT Appeals, then as accepted by HMRC, the penalties and PLN fall away. In making these observations we do not deny that there would be prejudice to the appellants in not being able to proceed with the Penalty/PLN Appeals but we find the overlap of issues reduces that prejudice." (Nissi N Nissi Limited v. HMRC [2025] UKFTT 567 (TC), Judge Hyde)
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- effect of pandemic on professional advisers did not justify 7 month delay
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"[33] It is accepted that the delay of seven months is serious and significant within the context of the case. No authority has been produced supportive of any Tribunal’s acceptance of pandemic reasons for a seven-month delay by a professional firm in submitting an important document to a Tribunal.
[34] I accept that there are certain circumstances where the effects of the pandemic could give rise to meritorious reasons for a delay. However, there is an absence of evidence in this case to demonstrate any specific circumstances or detailed effects of the pandemic that gave rise to this delay. On the basis of objective reasoning, and taking into consideration all the circumstances of this case, I do not accept the generic pandemic excuse given to be a good reason for such a delay." (Kiernander v. HMRC [2022] UKFTT 337 (TC), Judge Sukul)
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- continuing to argue with HMRC rather than submit appeal even when HMRC pointed out lack of appeal
"[51] Having weighed all of these factors I have concluded that I am, in the end, not persuaded to grant permission. I consider that had the appeal been notified within a reasonable period after 25 January 2022 I would have granted permission firstly because the period of delay would have been short and secondly because I consider that the conflict in the letter as to dates and the without prejudice correspondence could have created an impression to the representative and his client that the time limit was not running. However, by 25 January 2022 it was clear that HMRC considered the time limit to have expired. Rather than seek to remediate the position as soon as possible the representative continued to lock horns with what he considered to be the outrageous conduct of HMRC. He did not appeal but continued to make complaint to HMRC." (Cranham Sports LLP v. HMRC [2023] UKFTT 373 (TC), Judge Brown KC)
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- attempting to appeal before decision issued and then doing nothing in response to HMRC communications
"[100] In any event, even if he had sent those letters, and I do not accept that he did, the letters are irrelevant. There was no appealable decision issued until 29 April 2019 so he could not appeal in advance of that date. Furthermore, the “chaser letter” was sent 195 days after the appealable decision which is a serious and significant delay. In addition, neither letter contained the Grounds of Appeal in accordance with section 31A(5) TMA 1970.
[101] Even the letter of 1 June 2020, which HMRC have very liberally treated as being an appeal, has not complied with the provisions of section 31A(a)-(c) and section 31A(5) TMA." (Vekaria v. HMRC [2023] UKFTT 288 (TC), Judge Scott)
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- Appeals 10 - 30 days late and FTT not accepting correspondence not received
"[53] Having concluded that the likelihood of all the relevant letters being lost in the post is very low, we must consider whether, in this balancing exercise, we can consider the possibility of lost post could constitute a good reason for the delay in this case. We find that it cannot. Even if we accept at face value that the relevant information was provided in response to HMRC's original information notice and that these specific letters were not recovered from the empty head office address, it was not a reasonable position for WWL to take to assume that HMRC had simply accepted WWL's information and sent no further correspondence for over 18 months without taking some action. Ms Hill suggested that most communication was managed effectively by email, but did not return HMRC's email protocol, which would have enabled that communication.
[54] Drawing these factors together in the balancing exercise, we do not consider that Wolf & Whistle Limited has established a good reason for the delays in bringing the appeal and, in all the circumstances, we do not consider that it is appropriate to give permission for them to bring a late appeal in this case." (Wolf & Whistle Limited v. HMRC [2025] UKFTT 1187 (TC), Judge McGregor)
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- Likelihood of criminal conviction not outweighing 7 month delay
"[100] The prejudice to Mr Benson if he is not allowed to make a late appeal to HMRC therefore is that he will very likely be convicted of a criminal offence. This is undoubtedly a very severe prejudice to Mr Benson but that is in part simply because that is the statutory position and Parliament's intention. Further, allowing Mr Benson to make a late appeal to HMRC will not in itself avoid Mr Benson receiving a criminal conviction. Mr Benson would still need to be ultimately successful in that appeal and as stated above his grounds of appeal are not obviously strong or weak.
[101] Further in Charles Horder v HMRC [2023] UKUT 106 (TCC) the UT endorsed the FTT decision that even where allowing the late appeal would avoid a criminal conviction, this was not sufficient to outweigh the importance of meeting statutory time limits.
[102] We also note that granting Mr Benson permission to make a late appeal to HMRC is likely to result in further litigation in this Tribunal, delay to the related Magistrates' Court proceedings and further resource demand on HMRC when they reasonably considered that this matter had been concluded." (Benson v. HMRC [2025] UKFTT 304 (TC), Judge Snelders)
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- Wrong document uploaded, but failed to act when this was pointed out
"[23] Mr Cardey submits that it is understandable that he did not upload the correct document as he is a man of business rather than a lawyer. However, he is clearly a bright and intelligent man who runs a successful business. The instructions on the tribunal's website regarding the decision which needs to be uploaded when submitting an appeal, are clear. They are not written in technical language, but in plain English, and should have been readily understandable by Mr Cardey. It seems likely that he read them since he attempted to upload a document. His failing was that it was the wrong document. If it had been left like that, then we would have had some sympathy.
[24] However, he was notified by the tribunal's letter of 26 January 2024, that he had uploaded the wrong document and that need to be rectified. He was also told that if that was not done within the original 30 day period, a revised notice of appeal would not be valid unless it contained reasons for that at late appeal." (Preferred Tubes Limited v. HMRC [2025] UKFTT 524 (TC), Judge Popplewell)
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- 23 day delay not extensive, but contradictory and untrue reasons given
"[43] The balancing exercise on this application was not straightforward; the delay is not particularly lengthy compared to some that this Tribunal has had to consider, but neither is it trivial. However, set against this are the unsatisfactory explanations for the delay. These are contradictory, unsupported by evidence, and the reason given in correspondence and the Notice of Appeal for the delay (needing the information from a Subject Access Request response) was subsequently stated to be untrue." (Ahya v. HMRC [2025] UKFTT 1232 (TC), Judge Fairpo)
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- Significant delay not overlooked simply because amount at stake is large + conscious decision not to obtain advice on merits
"[18] There are several factors of prejudice to consider. Firstly the prejudice to the Appellants in not being able to pursue their appeal, which has a substantial value. The parties had referred to the decisions of this Tribunal in Elizabeth Green and Guerlain-Desai regarding the importance of the value of the appeal. Since they are both decisions of this Tribuanl, neither are binding on me. I prefer the approach taken in Elizabeth Green summarised in this short passage from paragraph 53 of that decision:
"it cannot be right that a delay which is significant and for which there was no good reason should be overlooked simply because the amount at stake is very large or significant to the would-be appellant."
[19] The value of the tax at stake makes the prejudice to the taxpayers of being unable to pursue their appeals a greater one, but in my view this factor is not a more or less important factor than others.
...
[22] HMRC also highlighted the fact that the Appellants' decision not to bring an appeal was made without reference to professional advice. I consider that this is a relevant factor because they had decided to obtain professional advice at earlier stages of the dispute and indeed their discovery of the Brosch appeal came from later discussions with professional advisers. On that basis, the only reasonable inference is that it was a conscious decision not to obtain professional advice at that time. Mr Goonesena stated at the hearing that his decision not to appeal was based on his own reading of the cases that he was aware of and we accept that this evidence was truthful but also that this decision not to engage professional advice was a conscious decision and one that he must bear the consequence of." (Goonesena v. HMRC [2024] UKFTT 619 (TC), Judge McGregor)
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- Mistakenly appealing to HMRC rather than the tribunal
"[19] Had this been a direct Tax case in which an appeal must be made, in the first instance, to HMRC, then we would have treated the email of 22 November 2020 as such an appeal, and although that falls after the 30 day deadline, we would not have considered that delay to have been so serious and significant. And would not outweigh the prejudice to the appellant of denying it the right to bring an appeal.
[20] But this is a VAT case. The accountant should have been aware that in these circumstances, the appeal must be made to the tribunal. That failure is attributable to the appellant." (Ariston Development Limited v. HMRC [2024] UKFTT 783 (TC), Judge Popplewell)
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LATE NOTICE OF HIGHER APPEAL
- Applications for PTA not usually copied to other party
“Such applications for permission to appeal are not normally copied to the other party to the appeal. Thus it could not be assumed that either Mr West or Mr Slater would have been aware of the contents of the PTA Application.” (West v. HMRC [2016] UKFTT 769_2 (TC), §9, Judge John Clark)
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- Importance of parties knowing whether decision is final
“The effect of Rule 39(4)(b) is plain; it assumes that an application for permission to appeal should not be admitted unless the Tribunal sees fit to use its discretion under the Tribunal Rules to allow an extension of the normal 56 day period. It is essential for parties to know whether a decision of the First-tier Tribunal is or is not to be treated as final. The question when they should be provided with a definite indication as to the position depends in part on the next of the points raised in Data Select.” (West v. HMRC [2016] UKFTT 769_2 (TC), §39, Judge John Clark)
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- Rules relating to late applications mean party cannot immediately assume decision is final
“The very existence of Rule 39(4) shows that the possibility of an application being made for permission to appeal remains open after the expiry of the 56 day period, and all the more so where the time which has elapsed since that expiry is not particularly lengthy, subject to the decision in the individual case whether or not extension of time should be granted following the relevant party’s application.” (West v. HMRC [2016] UKFTT 769_2 (TC), §44, Judge John Clark)
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- HMRC needing to consult internally not a good reason
“HMRC’s reasons for the delay are set out in their email message reproduced at [6] above. In summary, their reasons amount to this; in colloquial terms, they had not been able to “get their act together” within the normal time for lodging an application for permission to appeal. In my view, an organisation as substantial as HMRC should be ready to deal with Tribunal decisions in a prompt and appropriate fashion at whatever point in the year such decisions are released. I am aware that HMRC have argued for a strict approach in cases where they have sought to resist applications by other parties for extension of time or for reinstatement of appeals which have been struck out, although as I have stated, these have generally involved lengthier delays. I note the reference by Ryder LJ to irony in BPP at [36]. The point in issue here is not dissimilar. I do not consider that HMRC’s explanation demonstrates adequate reasons for the delay, given the resources available to them.” (West v. HMRC [2016] UKFTT 769_2 (TC), §43, Judge John Clark)
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- Take into account party’s experience and resources
“Thus it is not appropriate to apply a different standard to HMRC, but their experience and resources should be taken into account in considering all the circumstances.” (West v. HMRC [2016] UKFTT 769_2 (TC), §52, Judge John Clark)
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- Financial effect of refusing to extend time for HMRC on T due to likelihood of appealing that decision
“One consideration on which I place considerable weight is the possible effect on Mr West if I were to decide to refuse to grant the extension of time to HMRC. I consider that there would be a strong likelihood that HMRC would seek permission to appeal against this decision, and that in all probability such permission would be granted. In the course of his evidence at the hearing of his appeal, Mr West stated that he was on benefits. There was no reason to test that evidence or seek corroboration of it. If that evidence could be treated as sufficient evidence as to his financial position, there may be a risk that he could be put to further expense in the event that he or Mr Slater considered it necessary to be involved in any proceedings relating to an appeal by HMRC against this decision.” (West v. HMRC [2016] UKFTT 769_2 (TC), §57, Judge John Clark)
- Prejudice to HMRC
“Whilst serious, the denial of the right of appeal has to be weighed against the position in which HMRC find themselves by reason of the delay. It is necessary for HMRC to manage their litigation and to undertake their tax collections in an organised way. A late appeal prejudices them in both respects, as is demonstrated by the fact that it was at about the time when HMRC sought to collect the tax that the deficiencies in the case stated and the appeal process came to light.” (Woodpecker Ltd v. HMRC [2009] EWHC 3442 (Ch), §54)
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- Late change of legal advice not good reason
“He had 56 days to appeal; he had the choice of whether to accept Mr Horler’s advice not to appeal; he had the right to seek advice from a new adviser. Ultimately, he chose to seek new advice, but long after the time limit had expired. I have been given no good reason why he took so long to seek alternative advice.” (Clarke v. HMRC [2018] UKFTT 123 (TC), §52, Judge Mosedale)
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