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M32c. Late reinstatement application
No power to reinstate if deemed to be determined
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"[42] In OWD v HMRC [2018] UKFTT 497 (TC), Judge Falk (as she then was) considered the interaction between the Tribunal Rules and VATA s 85. She held, rightly in my view, that where s 85 applies it is not possible for an appeal to be reinstated. That is because s 85 deems the agreement between the parties to have the same consequences as if the Tribunal had come to a decision in the same terms. It is not possible to reinstate an appeal after it has been decided by the Tribunal." (Hussain v. HMRC [2023] UKFTT 40 (TC), Judge Redston)
See further M30: Withdrawal and M31: Reinstatement​​​​​​​​
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Apply relief from sanctions case law
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"[33]...First it seeks relief from the sanction imposed by Rule 8(6) of the FTT Rules to the effect that no application for reinstatement can be made later than 28 days after the date the FTT sent notice that the appeal was struck out. That aspect of the request for relief from sanctions involved a request for an extension of the relevant time limit pursuant to Rule 5(3)(a) of the FTT Rules." (HMRC v. BMW Shipping Agents Limited [2021] UKUT 91 (TCC), Judge Richards and Judge Cannan)
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- Focus on reasons why application is late rather than broader conduct
"[38] ​Yet the FTT Rules afford any person whose appeal is struck out a right to apply for reinstatement, within the 28-day time limit. Accordingly, historic failures, no matter how serious, are not a bar to an application for reinstatement if made in time. It follows, in our judgment, that where an application for reinstatement is made out of time, the focus should be on the proximate cause of why the 28-day time limit was missed, and not a wider examination of the litigant’s conduct leading up to the strike out which will be relevant in considering the underlying application for reinstatement." (HMRC v. BMW Shipping Agents Limited [2021] UKUT 91 (TCC), Judge Richards and Judge Cannan)
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"[30] In BMW Shipping Agents the Upper Tribunal made the point that where an application for reinstatement is made out of time, the focus should be on the proximate cause of why the 28 day time limit was missed, and not on a wider examination of the litigants conduct leading up to the strike out (which is relevant when considering the underlying application for reinstatement)." (Kotecha v. HMRC [2025] UKFTT 330 (TC), Judge Popplewell)
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Twenty eight day time limit to promote finality
“The purpose of a 28 day time limit to make an application for reinstatement is clearly intended to promote finality. The time limit within which an application is to be made is short. The time limit is similar to the 30 day time limit for appealing a decision of HMRC. That time limit is also intended to promote finality. Subject to the facts of any particular case, in the ordinary course the longer an application is delayed the less likely it is that time will be extended.” (Rolls Group v. HMRC [2015] UKFTT 404 (TC), §53)
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Good reason
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- Understandable not apply for reinstatement whilst unaware of strike out
"[39]...We consider that Mr Gibbon had an understandable reason for missing the deadline specified in Rule 8(6): it was simply not possible for him to apply for reinstatement before the point at which he knew the appeal was struck out. In saying this, we are not losing sight of the deficiencies in the conduct of the litigation, summarised at paragraph 37 to which HMRC referred and which Mr Gibbon largely accepted. However, we consider those deficiencies are more appropriately addressed in the section that follows, in which we consider the application for reinstatement itself.
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[42]...When balancing the quality of the reasons against other considerations at the third Martland stage, we will give particular weight to the importance of litigation being conducted efficiently and at proportionate cost and to time limits imposed by the FTT Rules being met. But, even giving that consideration particular weight, the Company could not comply with the deadline in Rule 8(6) because it did not know that its appeal had been struck out. If we decline to extend time for the reinstatement application, then the Company loses all prospect of defending the C-18 demand that HMRC has imposed. But if we grant the extension of time, then it remains possible that the conduct of the litigation that caused the Company to miss the time limit for serving a list of documents, including its protracted failure to follow up on the progress of its appeal, could count against it when the reinstatement application is considered. In short, granting the extension of time would not deprive HMRC of the ability to argue that, because of deficiencies in the conduct of the litigation, the appeal should not be reinstated." (HMRC v. BMW Shipping Agents Limited [2021] UKUT 91 (TCC), Judge Richards and Judge Cannan)
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"[31] I consider that Mr Ved had an understandable reason for missing the 28 day deadline as it was simply not possible for him to apply for reinstatement before the point at which he knew that the appeal was struck out. And that was only on 2 July 2024 when HMRC's letter following up their costs application was brought to his attention by one of the employees.
[32] It is true that Mr Ved should have made a diary note to monitor HMRC's statement of case, and that failure has contributed to the appellant's current position. But that is something which is much more important as regards the reinstatement application rather than the out of time application. Having failed to make that diary note, it would have been impossible, in the absence of any external stimulus, for Mr Ved to have been aware that the application had been struck out, and that time was therefore running to make an application for reinstatement." (Kotecha v. HMRC [2025] UKFTT 330 (TC), Judge Popplewell)
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“The reason for the delay was that the appellant was unaware that the appeal had been struck out. No blame is to be attached to the appellant or is representative for the fact that it was not notified of the striking out.” (Hattons (Southport) Ltd v. HMRC [2016] UKFTT 710 (TC), §29, Judge Herrington – reinstatement after 6 years, during which time T thought the appeal was stayed behind lead cases)
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- Clarifying whether there had actually been a breach of the unless order before applying to reinstate is a good reason
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"[33] However, the second reason, namely the confusion about the status of the striking out given the sending of the first email, the automated receipt from the tribunal timed at 4.48, and yet the fact that the tribunal file had no record of the first email, does seem to us to be a good reason. This is a complicated technical point. It has been argued before us that there was no technical breach of the Unless Order in that the first email complied with it. It is our view that it did not so comply given that the information was required to be sent to HMRC rather than the tribunal. But this is not straightforward, and we can see why the appellant and ACG wanted to clarify the situation with the tribunal before making a formal application for reinstatement which, to their minds, might be unnecessary given that there was no breach of the original order. Having raised this in their email on 20 June 2021 ACG then chased for a response on 13 September 2021. Although the tribunal had written to the appellant on 25 August 2021 telling the appellant that it needed to make a formal application for reinstatement, ACG’s email of 13 September 2021 is consistent with the appellant’s contention that neither it nor ACG received the tribunal’s email of 25 August 2021. And so it was not until the tribunal’s email on 5 November 2021 that they realised that a formal application for reinstatement was required. The application was then made about a fortnight later on 18 November 2021. So, the delay between clarification of the need to make a formal application and the making of that application itself, was short. And reflects the appellant’s contention that it was conscious of and intended to comply with its obligations to the tribunal. The same can be said of the appellant’s decision to appoint ACG very shortly after it learned, in March 2021, of the strike out. This reflects a desire to engage with the tribunal process." (McFarland v. HMRC [2022] UKFTT 355 (TC), Judge Popplewell)
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- Appellant not expected to apply to reinstate until he could have discovered withdrawal was based on wrong advice
“The appellants must be taken to have been aware of the 28 day time limit for reinstatement. Having said that, it seems to me that in the context of an application to extend time based on wrong advice from Deloitte, the appellants could not be expected to make such an application until they appreciated that the advice was wrong.” (Rolls Group v. HMRC [2015] UKFTT 404 (TC), §55)
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- - Once Appellant becomes aware of wrong advice he should apply to reinstate (or at least put HMRC on notice)
“In the context of a 28 day time limit I would have expected the appellants to act promptly once they had decided to pursue the Appeals and the applications to reinstate in March 2014. I take into account that the overriding objective includes avoiding unnecessary formality and dealing with cases in a proportionate way. However the appellants should at least have put HMRC on notice as to the situation and indicated that such applications were likely to be forthcoming. As far as I am aware no indication whatsoever was given to HMRC prior to November 2014 and February 2015 that these appellants wished to reinstate their appeals.” (Rolls Group v. HMRC [2015] UKFTT 404 (TC), §58)
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- Voluntary withdrawal but notice of withdrawal not received
“So far as Mr Hadland is concerned, he had never received the notice. The significance we draw is that the assertion of non-receipt by Mr Hadland, arguably, was the reason why the application was made out of time. We therefore give an extension of time and admit his late application.” (Hadland v. HMRC [2018] UKFTT 195 (TC), §63, Judge Poon)
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- Late application based on new evidence – exceptional
“It is clear to see the potential to undermine the important principle of finality of litigation were we to set aside a decision of the FTT in circumstances such as those in this case. On the basis of Miss Sloane submissions, it could be many years after a decision had been taken to strike out appeals that the appellant comes along with evidence of how material in relation to those appeals was being used in a different context in a manner which was unfair to him. It can only be in exceptional circumstances, such as those identified in Aslam, that the important principle of finality can be outweighed a long time after an appeal has been determined and for the reasons set out above we see no evidence of exceptional circumstances in this case.” (Clear plc v. HMRC [2016] UKUT 347 (TCC), §57, Judges Herrington and Aleksander)
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- Extension of time where withdrawal based on a mistake
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“At the hearing, I suggested to Mr Frenzel that if the withdrawal had been made because of a mistake then he might like to consider whether to apply for the appeal to be reinstated. An application under Rule 17(3) must be made within 28 days of the date the Tribunal received the notice, ie by 19 July 2011 in this case, and so Orchid would also have to apply for an extension of time under rule 5(3)(a) of the Rules. I said that I would be prepared to consider granting an extension of time in order to enable him to do so and Ms Sukul said that HMRC would not oppose such an application. Mr Frenzel declined to make any application.” (Orchid Properties v. HMRC [2012] UKFTT 651 (TC), §21)
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Prejudice​
- Loss of opportunity to reinstate a reasonably arguable appeal is significant prejudice
“[The taxpayer] restricted his submissions on prejudice to loss of the opportunity to put forward a reasonably arguable appeal and submitted that in itself is a significant prejudice. I accept that the appellants would lose that opportunity and that it does amount to significant prejudice…Strictly, the relevant prejudice to the appellants is losing the opportunity to pursue the application to reinstate.” (Rolls Group v. HMRC [2015] UKFTT 404 (TC), §§62…67)
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- Inability to make reinstatement application that the FTT would grant combined with some justification for delay leads to late application being permitted
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"When considering the balance of prejudice, we can have regard to any obvious strength or weakness of the appellant’s case. As case law shows, there is obviously much greater prejudice for an appellant to lose the opportunity of putting forward a really strong case than a very weak one. We have decided that the appellant, in the absence of the out of time application, should succeed with the reinstatement application. If, therefore, we do not give it permission to bring that application out of time, we will have deprived it of the opportunity of bringing a cast-iron application. On the other side of the coin, we do not see how HMRC will be prejudiced by granting permission for the appellant to bring the reinstatement application out of time. As mentioned earlier in this decision, they have proceeded on the basis that the hardship information had been provided on a timely basis and have gone on to comply with their obligations under the Rules. By granting the out of time application, HMRC will simply be obliged to continue with the appeal. By not granting it, the appellant will be deprived of the right to bring a successful reinstatement application. Notwithstanding, therefore, the serious and significant length of the delay, and the fact that the reasons for that delay are not all good ones, it is our view that the final evaluation justifies a decision that the out of time application should succeed. We are comfortable that this is consistent with our responsibility to deal with cases fairly and justly."(McFarland v. HMRC [2022] UKFTT 355 (TC), Judge Popplewell)
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- Expectation of finality is significant prejudice to HMRC
“I accept that HMRC has suffered prejudice. They were entitled to consider that the Appeals had been finalised and that the time for an application for reinstatement had long since passed.” (Rolls Group v. HMRC [2015] UKFTT 404 (TC), §65)
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- - But carries less weight where the same issue is raised in a number of other appeals
“There is a public interest in the finality of litigation. The strength of that argument, which was explicitly recognised by Morgan J in Data Select, is to some extent diminished in the context of litigation where a significant number of other traders are raising the same issue in separate appeals which have been stood over.” (Rolls Group v. HMRC [2015] UKFTT 404 (TC), §66)
- Prejudice of having to address reinstatement application modest
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"[34] As regards time and costs, both parties will be prejudiced whichever way I go. If I grant the out of time application, then HMRC will have to devote time and energy into considering the reinstatement application (modest given that they have already done so). If I deny the application, then the appellant will lose the opportunity of bringing the reinstatement application. As in BMW Shipping Agents, I take the view that the balance of prejudice on this point weighs in favour of the appellant. If I allow the out of time application, HMRC are still able to argue that the reinstatement application should be rejected, on the basis of the agent's behaviour recorded above. In denying the out of time application, then the appellant loses all prospect of challenging the notice of determination." (Kotecha v. HMRC [2025] UKFTT 330 (TC), Judge Popplewell)
Examples
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- 6 day late application admitted
"[41] Whilst finely balanced, I have decided in the light of the above that the late Reinstatement Application should be admitted, placing particular weight on the delay being of six days rather than a matter of weeks, and that some explanation has been provided for the delay. This then leads to my needing to consider the substance of the Reinstatement Application." (99P Recycling Ltd v. HMRC [2024] UKFTT 13 (TC), Judge Zaman)
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- 18 days late due to representative not forwarding strike out and weak application - not admitted
"[61] Applying the three-stage approach set out in Denton v TH White Ltd, I must first consider the seriousness and significance of the delay. In my view, a delay of 18 days in the context of a time limit of 28 days, is serious and significant and the Appellants have never contended otherwise.
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[64] Applying the approach required by the Upper Tribunal's decision in Katib, with which I respectfully agree, I am bound to conclude that the fact that the Appellants' representative did not act on the Tribunal's letter of 31 January 2024 or forward it to them does not constitute a good reason for the failure to apply to reinstate in time.
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[70] There is nothing in the circumstances of the case, taken as a whole, which would justify reinstating the appeals and allowing them to continue. On the contrary, this is the second time that these appeals have been struck out and, as the chronology set out above indicates, these proceedings have not been pursued with diligence and care. I accept that the Appellants will be prejudiced by not being able to pursue their appeals against the penalties but that cannot carry much weight in the circumstances. It cannot be the case that proceedings must be reinstated simply because the striking out has adverse financial consequences for the appellant or that would render the vast majority of strike outs nugatory." (Smith v. HMRC [2024] UKFTT 702 (TC), Judge Sinfield)
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- 56 days late where unaware of strike out - granted
"[31] I consider that Mr Ved had an understandable reason for missing the 28 day deadline as it was simply not possible for him to apply for reinstatement before the point at which he knew that the appeal was struck out. And that was only on 2 July 2024 when HMRC's letter following up their costs application was brought to his attention by one of the employees." (Kotecha v. HMRC [2025] UKFTT 330 (TC), Judge Popplewell)
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