Najat Hamasala v The Commissioners for HMRC [2025] UKFTT 1261 (TC)

[2025] UKFTT 01261 (TC)Case No TC09671
FIRST-TIER TRIBUNAL
TAX CHAMBER
Venue Cardiff Civil and Family Justice CentreHearing Heard on: 15 October 2025Date Judgment date: 23 October 2025
Appeal reference: TC/2024/04190
Application for permission to make late appeals to HMRC and to the Tribunal – Martland and Medpro considered – Applications dismissed
Before
TRIBUNAL JUDGE BROOKSTRIBUNAL MEMBER BIRD
Between
NAJAT HAMASALAAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentIn person for AppellantJoshua Gyasi litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]This is our decision on an application (the “Application”) by the Appellant, Mr Najat Hamasala, for the Tribunal’s permission to:(1) admit (and determine) a late appeal against a closure notice amending his 2014-15 self-assessment tax return and ‘discovery’ assessments for 2012-13, 2013-14 and 2015-16 issued by HM Revenue and Customs (“HMRC”) under s 29 Taxes Management Act 1970 (“TMA”) on 5 June 2017; and(2) give notice of his appeals to HMRC against late filing penalties totalling £3,955 for 2013-14 to 2016-17 inclusive (as set out in the schedule in the Appendix, below) after the expiry of the “relevant time limit”.[2]The Respondents, HMRC oppose the Application.[3]At the conclusion of the hearing at Cardiff Civil and Family Justice Centre on 15 October 2025, and after a short adjournment, we gave an oral decision dismissing the Application following which Mr Hamasala indicated he wished to consider an appeal.[4]Rule 35(4) of the Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 provides that a party wishing to appeal must apply for full written findings and reasons for the decision before seeking permission to do so. We have therefore provided this decision in order to enable Hamsala to decide whether to apply for permission to appeal and to assist him in formulating any such appeal.

Facts

[5]On 22 July 2016 HMRC opened an enquiry, under s 9A TMA, into the 2014-15 self-assessment tax returns of Mr Hamasala, who operated a car wash business. HMRC requested further information in a letter of 17 January 2017 to Mr Hamasala’s accountant. In the absence of a response, on 20 February 2017 an Information Notice was issued by HMRC to Mr Hamasala and his accountant. This required the production of that information. By letter to his accountant, dated 8 March 2017 HMRC warned that consideration was being given to issuing Mr Hamasala with penalties for inaccuracies in the 2014-15 tax return.[6]On 5 June 2017 HMRC issued a closure notice amending Mr Hamasala’s 2014-15 self-assessment tax return in addition to discovery assessments for 2012-13, 2013-14 and 2015-16. Mr Hamasala appealed to HMRC against the closure notice and discovery assessments on 21 June 2017 requesting a review of the calculations. On 17 August 2017 HMRC issued a ‘view of the matter’ letter responding to Mr Hamasala’s appeal which confirmed the closure notice and assessments. That letter explained that if Mr Hamasala did not agree with HMRC’s view he could either ask for the decision to be reviewed or notify his appeal to the Tribunal and clearly stated, under the sub-heading “Appeal to tribunal” (with emphasis as in the letter):
“If you want to notify your appeal to the tribunal you must send your appeal to the Tribunals Service within 30 days of the date of this letter.”
[7]Although late filing penalties had been issued by HMRC as early as 18 February 2015 (as can be seen from the schedule in the Appendix) Mr Hamasala had not appealed against these until his accountant sent a letter, dated 17 July 2019, to HMRC appealing against the penalties. HMRC rejected the appeals by letter of 6 September 2017 as the deadline for “appealing against the penalties has passed.”[8]On 1 May 2019 HMRC wrote to Mr Hamasala’s accountant, in response to a letter from him requesting the late appeal against the penalties be accepted, stating that the appeal could not be accepted as it was “too late”. The letter explained that:
“… If you do not agree that you made your appeal too late for us to consider, you can ask HM Courts & Tribunals Service to review our decision. You should write to them by 31 May 2020. They will arrange for an independent tribunal to consider your appeal. For more information about sending your appeal to HM Courts & Tribunals Service and for the appeal form, go to www.gov.uk/courts-tribunals/first-tier-tribunal-tax or phone them on 0300 123 1024.”
[9]Mr Hamasala appealed to the Tribunal against both the closure notice and assessments and the penalties on 2 June 2024. The reason given on his notice of appeal for the appeals being late was that he did not know about the Tribunal until:
“… a few days ago. HMRC told me I did not know”
[10]At the hearing Mr Hamasala explained that although he had been in the Republic of Ireland between November 2015 and November 2018 he had been in touch with his accountant in the UK throughout this period and was aware of HMRC’s letters. Mr Hamasala also said that he had relied on his accountant who, when asked about the position with HMRC, had always assured him that everything was “in hand” and being “dealt with”.

Law

[11]Section 31A TMA provides that a notice of appeal must be in writing, specify the grounds of appeal and be made to HMRC within 30 days of the relevant date. The “relevant date” is the date on which the closure notice, assessment or penalties were issued. Section 49 TMA provides that a notice of appeal may be given to HMRC after the expiry of the day 30 time limit if HMRC agree or the Tribunal gives permission.[12]An appeal can be made to the Tribunal if an in-time appeal has been made to HMRC, a review has been requested and HMRC provide their view of the matter (see s 49B TMA). However, such an appeal must be brought within 30 days of the date “of the document in which HMRC gives notice of the conclusion of the review. An appeal after that 30 day period has expired may only be notified to the Tribunal with the Tribunal’s permission (see ss 49G and 49H TMA).[13]Guidance on the approach to be adopted and legal principles to be applied when exercising a judicial discretion whether to admit a late were given by the Upper Tribunal in the case of Martlandv HMRC [2018] UKUT 178 (TCC) (“Martland”) at [44] – [47]. We summarise these as follows:(1) It must be remembered that the starting point is that permission should not be granted unless the Tribunal is satisfied on balance that it should be.(2) In considering that question, the Tribunal can usefully follow the three-stage process set out in Denton: (i) Establish the length of the delay. If it was very short (which would, in the absence of unusual circumstances, equate to the breach being ‘neither serious nor significant’), then the FTT ‘is unlikely to need to spend much time on the second and third stages’; (ii) Establish the reason (or reasons) why the default occurred; and(3) Evaluate ‘all the circumstances of the case’. This will involve a balancing exercise which will essentially assess the merits of the reason(s) given for the delay and the prejudice which would be caused to both parties by granting or refusing permission. (1) In carrying out the balancing exercise the Tribunal can have regard to any obvious strength or weakness of the applicant’s case; this goes to the question of prejudice. (2) Shortage of funds (and consequent inability to instruct a professional adviser) should not, of itself, generally carry any weight in the Tribunal’s consideration of the reasonableness of the applicant’s explanation of the delay:[14]Although the Upper Tribunal in Martland stated that the balancing exercise should take into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected, it is clear from the more recent decisions of the Upper Tribunal in Medpro Healthcare Ltd v HMRC [2025] UKUT 255 (TCC) (“Medpro”) and Pawar v HMRC [2025] UKUT 309 (TCC) that no extra weight should be given to this factor. Although we have adopted the approach as in Martland, the recent decision of the FTT (which included the Senior President of Tribunals, Dingemans LJ, as a member of the panel) in Lands Luo Ltd v HMRC [2025] UKFTT 1207 (TC) which was released on 9 October 2025 came to a different conclusion, ie that particular importance should be given to time limits etc as in Martland.

Discussion

[15]We consider that the three stage Martland approach is appropriate in considering the two matters before the Tribunal, ie whether Mr Hamasala’s appeal against the closure should be admitted out of time and whether permission should be granted for him to notify HMRC of his appeals against the penalties out of time.[16]The first stage is the length of the delay.[17]With regard to the closure notice and assessments, an appeal to the Tribunal should have been made to the Tribunal within 30 days of the date of the document in which HMRC gives notice of the conclusion of the review As that document is HMRC’s ‘view of the matter’ letter dated 17 August 2017, Mr Hamasala should have notified his appeal against the closure notice and assessments to the Tribunal by 16 September 2017. However, he did not appeal to the Tribunal until 2 June 2024, some six years and nine months late.[18]The appeals against the penalties should have been made to HMRC within 30 days of the date they were issued. The earliest of these was issued on 18 February 2015 and the latest 19 February 2019. Therefore the appeal to HMRC against the earliest of the penalties should have been made by 20 March 2015 and the latest by 21 March 2019. However, the appeals against all penalties was not made until 2 June 2024.[19]Given that a three month delay where there had been a one month time limit was described as “serious and significant” in Romasave (Property Services) Ltd v HMRC [2015] UKUT 254 (TCC) we find that this was also the case in regard to both the appeals against the closure notice and assessments and the appeals against the penalties.[20]The second Martland stage is to establish the reason for the delay.[21]In his notice of appeal Mr Hamasala stated that he was not aware of the Tribunal. At the hearing he said that he was out of the country between November 2015 and November 2018. He also said that he relied on his accountant and was told that everything was in hand.[22]The third of the Martland stages is to undertake a balancing exercise to evaluate all the circumstances of the case. In doing so the starting point, as the Upper Tribunal stated in Martland, is that permission should not be granted unless we are satisfied on balance that it should be.[23]Having carefully considered all of the circumstances of the case, which includes everything Mr Hamasala told the Tribunal (even if we have not specifically referred to it in this decision) and taken into account the parties’ submissions, we have come to the conclusion that, on balance, given the significant and serious delay, Mr Hamasala should not be granted permission to proceed with his appeal to the Tribunal or to notify HMRC of his appeals against the penalties out of time.[24]We are afraid that we are unable to accept that he was unaware of the Tribunal. This is because the letters sent to him and/or his accountant from HMRC of 17 August 2017 and 1 May 2019 clearly refer to an appeal to the Tribunal and provide details (ie telephone number and website) of how to obtain further information of how to do so.[25]Also, although he was not in the UK for a period between 2015 and 2018 he confirmed that he was aware of HMRC’s letters. In any event, even if he had not been aware of the position until he returned to the UK in November 2018, it does not account for his failure to appeal until 2 June 2024.[26]As for his reliance on his accountant, we consider that Mr Hamasala’s position falls within the general rule in HMRC vKatib in which the Upper Tribunal said, at [54], that “… failures by a litigant’s adviser should generally be treated as failures by the litigant.”[27]Mr Hamasala’s complaint is similar to that made by Mr Katib, which the Upper Tribunal recorded at [58] of its decision is that his accountant:
“…was incompetent, did not give proper advice, failed to appeal on time and told Mr Katib that matters were in hand when they were not. In other words, he did not do his job. That core complaint is, unfortunately, not as uncommon as it should be. It may be that the nature of the incompetence is rather more striking, if not spectacular, than one normally sees, but that makes no difference in these circumstances. It cannot be the case that a greater degree of adviser incompetence improves one’s chances of an appeal, either by enabling the client to distance himself from the activity or otherwise.”
[28]Therefore, for the reasons above we dismiss the Application and refuse Mr Hamasala permission to make a late appeal against the closure notice and assessments to the Tribunal and for him to notify his appeals against penalties to HMRC out of time.[29]We should also add, for the sake of completeness, that we would have come to the same conclusion if we had adopted the Martland approach and given the need to comply with time limits etc greater significance.

Right to apply for permission to appeal

[30]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 23rd OCTOBER 2025 appendix 31. Schedule of penalties Year Date Penalty £ 2013-14 18/02/15 Late Filing 100 2013-14 14/08/15 Daily Late Filing 900 2013-14 14/08/15 6 Month Late Filing 300 2013-14 06/06/17 6 Month Late Filing 24 2013-14 29/08/17 30 Days Late Filing 324 2013-14 16/01/18 6 Month Late Filing 324 2014-15 28/08/17 30 Days Late Filing 304 2014-15 16/01/18 6 Months Late Filing 304 2014-15 24/07/18 12 Months Late Filing 274 2015-16 29/08/17 30 Days Late Filing 281 2015-16 16/01/18 6 Months Late Filing 281 2015-16 17/07/18 12 Months Late Filing 281 2016-17 13/03/18 30 Days Late Filing 86 2016-17 28/08/18 6 Months Late Filing 86 2016-17 19/02/19 12 Months Late Filing 86 Total 3,955

Cited in 1 later judgment