© 2024 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Procedure.Tax
For additional search results use Google and enter:
site:procedure.tax [search term]
L8: Notice of appeal to FTT
Form of notice to Tribunal
“(1) A person making or notifying an appeal to the Tribunal under any enactment must start proceedings by sending or delivering a notice of appeal to the Tribunal.
(2) The notice of appeal must include--
(a) the name and address of the appellant;
(b) the name and address of the appellant's representative (if any);
(c) an address where documents for the appellant may be sent or delivered;
(d) details of the decision appealed against;
(e) the result the appellant is seeking; and
(f) the grounds for making the appeal.
(3) The appellant must provide with the notice of appeal a copy of any written record of any decision appealed against, and any statement of reasons for that decision, that the appellant has or can reasonably obtain.” (FTT Rules, r.20(1) – (3)).
Undesirable not to use official Notice of Appeal form
“…we regard it as undesirable for any appeal or application to be notified to HMC&TS without completion of the required Notice of Appeal form. The exercise of completing that form is intended to ensure that all relevant information is provided to HMC&TS, and ultimately to the Tribunal, so that proper account can be taken of that information for the purposes of the appeal or application. In particular, the Tribunal needs to have a clear statement of the grounds of appeal or the grounds for the application.” (Alkadhi v. HMRC [2012] UKFTT 741 (TC), §8).
HMRC cannot notify appeal to Tribunal for taxpayer
“We would like to emphasise the need to follow the proper procedure in these matters. It is not sufficient, where making an appeal or application to the Tribunal, to notify HMRC, and it is not appropriate for HMRC to notify HMC&TS of any appeal or application on behalf of a taxpayer. The taxpayer should notify his appeal to HMC&TS.” (Alkadhi v. HMRC [2012] UKFTT 741 (TC), §8).
​
Strike out for refusal to provide address
“I place no reliance on the provision of the Dublin address or the c/o address in Scotland given the history of these appeals. For the reasons given the email address is patently unreliable. I therefore direct that given his failure to comply in regard to provision of an address where documents could be served the Work appeal should be struck out on that basis.” (Allen v. HMRC [2016] UKFTT 571 (TC), §130).
No appeal without identifying decision appealed against
“We note that the Appellant’s first Notice of Appeal pre-dates that “decision” and that its subsequent amendment to the grounds of appeal (raising the issue of a possible input tax claim) was made after March 2010 but does not refer to an appeal against a specific decision. The Appellant’s second Notice of Appeal was filed after March 2010 but also does not refer to a specific decision. In the circumstances we conclude that there is no determinable appeal before us in relation to that issue and that we have no jurisdiction to decide, in the context of the present appeals, whether the Appellant is entitled in the future to make an input tax claim.” (Franck & Tobiesen (UK) Ltd v. HMRC [2013] UKFTT 648 (TC), §29).
​
Effect of irregularities relating to notice of appeal
"(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice
direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction,
the Tribunal may take such action as it considers just, which may include--
(a) waiving the requirement;
(b) requiring the failure to be remedied;
(c) exercising its power under rule 8 (striking out a party's case);
(d) restricting a party's participation in proceedings; or
(e) exercising its power under paragraph (3)." (FTT Rules r.7(1) - (2))
​
Power to waive applies to requirements of notice of appeal
​
"[43] Where such an application is made then the waiver power under Rule 6 is applicable. I regard it as significant that this power is a very wide one. Apart from employer's contract claims with which we are not concerned, Rule 6 applies to any failure to comply with any provision of the Rules other than the requirement to use a prescribed form to present a claim or response. It would be most peculiar if an error about the EC certificate number leading to rejection under Rule 10 or Rule 12 were somehow impliedly excluded from the waiver provisions of Rule 6, even though Rule 6 contains no express exclusion of such errors. To say that any such error goes to jurisdiction is to beg the question." (Sainsbury's Supermarkets Ltd v. Clark [2023] EWCA Civ 386, Bean, Asplin, Nugee LJJJ)
"[37] The Upper Tribunal in SA [[2022] UKUT 132 (IAC)] then set out, from paragraph 46, guidance on what it would do in the various instances of non-compliance with aspects of rule 21(4)—
“46. Henceforth, therefore, parties should assume that the Upper Tribunal’s approach to applications that do not comply with rule 21(4)(e) is likely to be as follows: Where the Upper Tribunal receives an application which is not accompanied with [sic] the grounds (whether or not the covering letter accompanying the application or the completed IAUT1 form states that the grounds are attached or enclosed), an Upper Tribunal Lawyer (or a judge) will write to the applicant (if his address has been supplied pursuant to rule 21(4)(a)) and (if represented) to his or her legal representative: (i) stating that the grounds were not received with the application; (ii) requiring (pursuant to rule 7(2)(b)) that the failure be remedied, in that the appellant must now submit the grounds within a specified number of working days beginning with the date of the letter; and (ii) explaining that upon expiry of the deadline, the application will be placed before an Upper Tribunal Judge for a decision on the application on the material before the Upper Tribunal.”." (PRB Trading Limited v. HMRC [2023] UKFTT 421 (TC), Judge Perez)
​
Purposive approach in the employment tribunals
"[50] In accepting those submissions of Mr Purchase (with the agreement of Arden and Newey LJJ) I was not endorsing the argument that wherever there is any breach of Rule 12 it means that no valid proceedings have been commenced. The issue in Parry was whether the claim attaching the wrong particulars was in a form which could "sensibly be responded to". This court held that it was, since it was an unfair dismissal claim where the facts were well known to both sides and the employers could have put in a sensible holding response, but that in cases potentially involving more complex subject matter such as discrimination such a claim might well be properly rejected. Parry gives no support to the placing of artificial barriers in the way of genuine tribunal claims: on the contrary, see my observations to that effect at paragraph 31.
[51] I return to Mr Milford's submissions about giving effect to the legislative purpose. The legislative purpose of s 18A of the 1996 Act was to require claimants to go to ACAS and to have an EC certificate from ACAS (unless exempt from doing so) before presenting a claim to an ET in order to be able to prove, if the issue arises, that they have done so. I do not accept that it is part of the legislative purpose to require that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the start. If the claim is rejected in its earliest stages under Rule 10 or 12 then the claimant may seek rectification or reconsideration. If it is not, then the time for rejection of the claim has passed. The respondent may instead apply to have the claim dismissed under rule 27 or struck out under rule 37, with the tribunal having the power to waive errors such as the one relied on in the present case under Rule 6." (Sainsbury's Supermarkets Ltd v. Clark [2023] EWCA Civ 386, Bean, Asplin, Nugee LJJJ)
​
- Tribunal unlawfully rejecting the appeal rather than considering whether to waive irregularity
"[51]...As set out in the case law upon which Mr Watkinson relied, at paragraphs 28 to 37 above, rule 7 is there for a reason. If an appeal is automatically null because it fails to attach something required by the rules, there is no place for rule 7. When it became apparent that the decision notices had not been supplied to the tribunal despite its request of 28 November 2018, the appeal should have been referred to a judge for consideration of what to do in light of that. That the tribunal did not consider whether to waive the irregularity and simply rejected the appeal as invalid was unlawful; both the 28 November 2018 letter and the 25 January 2019 letter came from tribunal staff and did not purport to be sent on the direction of a judge. There was no unless order warning of a potential striking out (although I do not suggest that one would necessarily have been justified merely for the lack of the decision notices). And there was no striking out order.
[52] I am now treating the appeal as having been referred to me for consideration of whether to waive the irregularity, and I do waive it. This is not one of the more extreme cases where, for example, an appellant has simply emailed the tribunal saying the appellant wants to appeal, without saying against what and without supplying a Notice of Appeal. Nor is it a case where, although a Notice of Appeal has been supplied, it includes no indication of what is being appealed. Although, even in those cases, there can be room for rule 7 to operate." (PRB Trading Limited v. HMRC [2023] UKFTT 421 (TC), Judge Perez)
​
Grounds of appeal to FTT
Grounds of appeal must allow HMRC to understand the case against it
"[26] Allpay was a case in which HMRC suggested that since the burden of proof of establishing that certain services were “payment services” rested with the appellant, they did not need to plead that those services were not payment services. Judge Mosedale disagreed. Even though HMRC might have difficulty in “pleading a negative”, it was her view that HMRC ought to plead their case on payment services if they wish to make an issue of it at the hearing and they ought to specify in summary terms what element of the facts (as they see them) mean that the appellant’s services are not payment services and why. In my view the comments made by Judge Mosedale about HMRC’s obligations of what they need to set out in their statement of case apply equally to an appellant’s obligations to set out adequate grounds of appeal.
[27] In this case it is clear to me that the extent and detail of the appellant’s grounds of appeal against the first discovery assessment extend beyond those suggested to me by HMRC in their submissions. However I do not think they go far enough. Firstly although the grounds of appeal against the first discovery assessment refer to the amendment which HMRC have made from assessing the remittance to income to a remittance of a capital gain and goes on to deal with deal with base cost, those grounds do not set out the basis on which the appellant challenges that it was not income. It seems from the review conclusion letter that the appellant challenges the validity of the first discovery assessment on the basis that any remittance was capital which was derived from the sale of real property, and not income. In order for to comply with the principles set out at [25] and [26] above, this should be plainly stated. And whilst the base cost issue might be highly relevant to the challenge to the second assessment, it is of secondary importance to the challenge to the first assessment. For the first assessment, the relevant issue is whether the payment reflects capital or income not the computation of the capital gains. Secondly although the appellant suggests in his submissions that the grounds of appeal clearly state that there was no remittance by the appellant, that is not clear to me. Whilst the grounds do state that a payment was made to a third party, the appellant does not state, squarely, that there was no remittance by or to him. Thirdly the appellant raises no suggestion that the discovery assessment is anything other than valid. For the reasons given in Allpay it is my judgment that if the appellant wishes to make an issue of the validity of the discovery assessment at the hearing, then he must specify in summary terms what elements of the facts as he sees them suggest that the discovery assessment may not be valid. Finally, my understanding is that currently the appeals are not joined, and I am unhappy that given this, the grounds of appeal for 2020/04487 cross refer to the grounds of appeal in 2019/09151, are of themselves very short on detail, and would not allow HMRC to provide a sufficiently detailed statement of case." (Choudhrie v. HMRC [2021] UKFTT 152 (TC), Judge Popplewell)
​
“…grounds of appeal must be sufficiently detailed to enable the defendant to understand the case and prepare a statement of case in answer to it.” (Unicorn Shipping Ltd v. HMRC [2017] UKFTT 464 (TC), §6, Judge Mosedale).
General denial not sufficient
“…they contained nothing more than a general denial and a statement that the appellant would ‘respond in more detail once it knows exactly what occasions/incidents are relied upon’ by HMRC. That was inadequate as it entirely failed to address the details which HMRC did give in circumstances where the appellant had the burden of proof.” (Unicorn Shipping Ltd v. HMRC [2017] UKFTT 464 (TC), §10, Judge Mosedale).
Grounds of appeal often general
“It is true that in many appeals, as in these, the grounds of appeal are very general. But as the appeal progresses it becomes clear from the course of the argument what are the issues between the parties on which the decision of the commissioners is called for.” (Hallamshire Industrial Finance Trust Ltd v. IRC [1979] STC 237 at 242).
Necessary to identify points of dispute
“…the appellant, as well as HMRC, should set out its case whether it advances a positive case or is merely putting HMRC to proof. HMRC is entitled to know which of the issues is in dispute, and the basis on which the relevant issues are disputed.” (CF Booth Ltd v. HMRC [2016] UKFTT 261 (TC), §13).
Not necessary to state every fact relied upon
“In the same way that a notice of appeal does not require the appellant to state absolutely every fact on which it relies, no more is a statement of case required to contain this level of detail.” (Citibank NA v. HMRC [2014] UKFTT 1063 (TC), §95, Judge Mosedale).
Inadequate reasons for HMRC’s decision is not a reason for dispensing with proper grounds of appeal
“…the appellant should only lodge an appeal where it has grounds of appeal that give rise to an arguable case that that decision was wrong. And to the extent that HMRC’s decision letter does not contain adequate or perhaps, any, reasons for the refusal to authorise the appellant for the SDP, then that in itself I would expect to see as a ground of appeal.” (Unicorn Shipping Ltd v. HMRC [2017] UKFTT 464 (TC), §7, Judge Mosedale)
​
- Formal pleadings must make clear the general nature of the case
"[69] In the following paragraph Judge Hellier made it clear that "...The need to understand the case may be met less formally and flexibly by other means [than the formal pleadings]". The Appellant's case is that once it was appreciated that there was a time bar issue and the full implications of that, the application dated 10 November 2022 followed by the response dated 6 December 2022 made the Appellant's case very clear. It did not have to rely on the pleadings that had previously been lodged.
[70] However, I observe that Judge Hellier also made it clear at paragraph 8 that "The formal pleadings should make clear the general nature of the case." (Monmore Properties Ltd v. HMRC [2024] UKFTT 137 (TC), Judge Anne Scott)
​
- Argument referred to in correspondence but not formally pleaded treated as being before Tribunal
"[146] We have come to the view that, on balance, the point is not a new issue and should properly be regarded as being before the Tribunal. We acknowledge that the point is not properly formally pleaded. However, the point was clearly at issue between the parties before the submission of the notice of appeal. The notice of appeal and the amended grounds of appeal did not correctly refer to the penalties and HMRC, to their credit, took some steps to clarify the scope of the appeal. Although the wording of Elliotts Shah's email of 17 August 2021 is not particularly precise - the reference to not having "seen or received HMRC communications" could be taken to refer to the receipt of penalty assessments or other correspondence in addition to the receipt of the section 8 TMA notice itself - and we would have expected great clarity in professional correspondence, read in the context of the earlier exchanges, in our view, it should be regarded as including a reference to section 8 TMA notices. Accordingly, in exercise of our powers under FTR 5(3), we would permit Mr Niasse to make submissions on this point. In arriving at this conclusion, we are mindful of the overriding objective "to deal with cases fairly and justly" in FTR 2(1) and in particular the injunction in FTR 2(2)(b) to avoid "unnecessary formality".
[147] That having been said, the correspondence with Elliotts Shah was not as clear as might have been reasonably expected. We can understand why HMRC may not have regarded the point as continuing to be in issue. As a result of the conclusions that we have reached below, we do not need to address this point. However, if we had not reached those conclusions, we would have considered that procedural fairness required us to permit HMRC to introduce further evidence to address the point and to allow them time to do so." (Niasse v. HMRC [2024] UKFTT 179 (TC), Judge Greenbank)
​
Duty to give notice of allegation of dishonesty
“…the tribunal should insist at the outset that any allegations of dishonesty or other wrongdoing against those acting for the Commissioners should be stated unequivocally; that the allegation and the basis for it should be fully particularised; and that it is responded to in writing by the Commissioners. The tribunal should not in any circumstances allow cross-examination of the Customs officers concerned, until that is done.” (CEC v. Pegasus Birds Ltd [2004] STC 1509 at §38(iii));
“It was unfortunate that an allegation of dishonesty, even if only ‘intellectual dishonesty’, was allowed to persist in the submissions to the tribunal, and without clarification or adequate particulars. The charge in the extended notice of appeal was not of dishonesty but of perversity.” (CEC v. Pegasus Birds Ltd [2004] STC 1509 at §59);
“What is require is that someone who is a party…or who is to be called as a witness and whose honesty is to be put at stake before the tribunal must by some fair means be given good notice of that fact and the evidence which will be relied upon in pursuit of the allegation; it is not required that the statement of case contains those elements. Clearly also it must be put squarely to her when she gives evidence.” (Vale Europe Ltd v. HMRC [2014] UKFTT 1042 (TC), §16);
“Officer Powell suggested to the appellant in cross-examination that the OWS did not exist. That was effectively an allegation of fraud since the appellant has been claiming capital allowances on the OWS. HMRC’s pleaded Statement of Case contains no allegation of fraud against the appellant and we did not allow Officer Powell to make that allegation for the first time during the hearing. We have therefore approached our decision on the basis that the OWS does exist and we need to decide whether losses arising in consequence of capital allowances on the OWS can be carried forward and set off against the appellant’s other business profits.” (Adelekun v. HMRC [2016] UKFTT 107 (TC), §9).
Witness statement sufficient if alleged against a third party:
“No doubt it would have been preferable if the allegations against Mr Bridger, and their significance, formed part of Mr Katib’s grounds of appeal and were not just made in witness statement. However, the overriding objective set out in Rule 2 of the FTT Rules enjoins the FTT to avoid unnecessary formality. Mr Katib’s position was fairly set out in his witness statement and HMRC were not arguing that the hearing should be adjourned to enable them to obtain further evidence to meet the arguments he was making. All parties were, therefore, ready and able to proceed with the FTT hearing and the FTT was entirely justified in concluding that a formal application to amend grounds of appeal was unnecessary. We would have made the same decision ourselves.” (HMRC v. Katib [2019] UKUT 189 (TCC), §17, Mann J and Judge Jonathan Richards)
​
Actual fraud by HMRC likely to be rare
“Fortunately in this country, sustainable allegations of actual fraud or corruption on the part of public officials are likely to be very rare indeed. What is much more likely is an allegation that, in ‘the heat of the chase’ an apparent wrongdoer, the officers concerned have, consciously or unconsciously, cut corners or closed their minds to relevant material. Defining the boundaries of ‘dishonesty’ in such cases is notoriously difficult (cf Twinsectra Ltd v. Yardley [2002] UKHL 12 at [20 – 22]).” (CEC v. Pegasus Birds Ltd [2004] STC 1509, §28).