© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Procedure.Tax
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K5: Unappealable decisions
Self-assessments
“An appeal may be brought against - …(d) any assessment to tax which is not a self-assessment.” (TMA 1970 s.31(1)(d))
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“…it is not open to a taxpayer to appeal against their own self-assessment – s 31(1)(d) TMA.” (Norman v. HMRC [2015] UKFTT 303 (TC), Annex 2, §21)
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Section 28C determination in default of return
See B8: Failure to submit a return
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“a taxpayer has a remedy for incorrect amounts which he may pursue by submitting a return and self-assessment. Since the self-assessment supersedes and cancels out the determination there is no need for a right of appeal against amounts in the determination…But what can a taxpayer do when the officers of HMRC seek to collect the tax they say is due under an invalid determination…The answer, it seems to us, is the same as would be the case for any other illegal demand. He may contest the demand in the forum HMRC seek to enforce it. If necessary he might institute judicial review proceedings in the High Court for a declaration that the determination is a nullity.” (Bartram v. HMRC [2011] UKFTT 471 (TC), §§28…31…32; approved by [2012] UKUT 184 (TCC), §57).
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Consequential amendment to partner's tax return under s.28B(4)
"[26]​ In summary, I do not consider that the decision in Unison provides any basis for me to depart from the conclusion of the Upper Tribunal in Reid and other decisions noted above that a s28B(4) notice is not a closure notice and cannot be appealed under s31 TMA 1970. Accordingly, this Tribunal has no jurisdiction in respect of the appeal and the application to strike out is granted." (Mathieson v. HMRC [2022] UKFTT 11 (TC), Judge Fairpo)
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- Abuse of process to challenge validity of notice in ordinary High Court claim rather than judicial review
"[25] We are satisfied that, in the present case, the correct procedure for individual partners to challenge the amendments made to their returns was by judicial review, and not by ordinary civil proceedings. There are a number of reasons for this.
[1] First, there are no private law rights involved. This is not, for example, a case where a claimant is seeking to enforce a contractual right.
[2] Second, the time limits are a strong factor in favour of judicial review being the correct procedure. Both appeals to the FTT and applications for permission to pursue judicial review are subject to short time limits. It makes no sense at all that an individual taxpayer or a partnership has a period of 30 days in which to appeal to the FTT against a closure notice, but an individual partner should have six years in which to make what is, in effect, the same challenge to a notice given under section 28B(4).
[3] Third, the challenges in these cases affect a large number of people and raise no issues of fact that might be unsuitable for determination in judicial review proceedings.
[4] Fourth, the requirement for permission to pursue judicial review does not make it an unsuitable procedure in the circumstances of this case, any more than in the many other cases (tax and non-tax) to which it applies. It is no more than a filter to weed out groundless cases.
[26] We are accordingly satisfied that the judge was right in his conclusion that, irrespective of the merits of the substantive issues of law arising in these cases, the Part 7 proceedings should be struck out as an abuse of the process of the court." (Knibbs v. HMRC [2019] EWCA Civ 1719 - numbering added)
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"[64] In my judgment, these (obiter) observations about the appropriateness of a judicial review claim on the facts of that case do not lend any support to the argument that a claim that is properly the subject of a judicial review, in accordance with Knibbs, can be brought instead as a Part 7 claim. On the contrary, Archer supports the argument that a challenge to the validity of a notice should be brought by judicial review if an appeal is unavailable or inappropriate for other reasons. Neither is a Part 7 claim seeking to establish that HMRC could not or could not properly give a s.28B(4) notice to the claimant justified because HMRC threatened bankruptcy proceedings: the Administrative Court or the bankruptcy court can grant a temporary injunction, if required, to restrain presentation of a bankruptcy petition.
[65] The real issue raised in the claim before the court is whether HMRC has power to give a s.28B(4) notice to a partner, following a closure notice served on the partnership, if in law there was no partnership. That is, in the first instance, a general question of statutory interpretation as to the scope of the duty/power conferred on HMRC by the TMA, as amended; and secondly a question of whether in the light of the s.54 Agreement it was proper for HMRC to exercise it. All the relief claimed – so far as it is still pursued – flows from a decision on these issues.
[66] Stating the issues in this way demonstrates that this is a claim that should have been brought by judicial review. The matter in issue is the validity of the s.28B(4) notices, which depends on general issues of law. There is no overlap with private law rights, as there was in a case like Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, which prevented the bringing of a private claim for breach of contract in a public law context from being an abuse of process.
[67] In my judgment, HMRC is right that to bring this claim for declaratory relief as a Part 7 claim, well out of time for bringing a judicial review claim, is an abuse of process. The issues are ones of general significance, raising no factual dispute. In substance the relief sought is the quashing of the s.28B(4) notices, or a declaration of their invalidity, and the other relief sought is purely consequential. Had I concluded that the s.54 Agreement means that it was agreed that there was never a partnership, the question would still remain whether on that basis the duty in s.28B(4) was subject to an implied limitation (or was wrongly exercised) when (as conceded on behalf of the Claimant) the duty in s.28B(2) to amend the partnership return had to be complied with.
[68] These are public law questions, not matters of private right." (Barklem v. HMRC [2024] EWHC 651 (Ch), Fancourt J)
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Decision not to admit a direct tax claim that is not in required form
FTT will decide if claim is in required form, but if it is not, no appeal against refusal
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"[26] Ms McDonald quite properly accepts that HMRC, rather than seeking clarification as to whether it should have assumed that a negligible value claim was being made, ought to have responded to the Accountants letter of 6 September 2018 by explaining, in accordance with its own guidance, what was needed to put the claim in the proper form and set out the information needed.
[27] However, as to whether or not the claim is in the required “form” and HMRC’s failure to notify Mr Williams of how it could be corrected to comply, is in the absence of a right of appeal under s 31 TMA, a matter for HMRC (and possibly a formal complaint, reference to the Adjudicator and/or judicial review) rather than the Tribunal.
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[30] The applicable legislation, s 31 TMA, does not contain any right of appeal against HMRC’s decision not to admit a negligible value claim that is not in the required form and consequently not valid. Given that the Tribunal’s jurisdiction is governed by that legislation, it follows that the Tribunal does not have the jurisdiction to determine this issue or consider the conduct of HMRC not to allow the claim or refer the appellant to the appropriate guidance." (Williams v. HMRC [2023] UKFTT 429 (TC), Judge Brooks)
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Decision under disguised remuneration voluntary repayment scheme regs
"[30] As I have already described, neither Finance Act 2020 nor the terms of the Disguised Remuneration Voluntary Repayment Scheme make any mention of any right of appeal to the First-Tier Tribunal. The Tribunal does not therefore have jurisdiction in relation to Mr Lambourne’s appeal and it must therefore be struck out in accordance with rule 8(2)(a) of the Tribunal rules." (Lambourne v. HMRC [2022] UKFTT 466 (TC), Judge Vos)
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