Mark Curtis v The Commissioners for HMRC [2025] UKFTT 1605 (TC)

[2025] UKFTT 01605 (TC)Case No TC09734
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 4 June 2025Date Judgment date: 22 December 2025
Taylor House, London
Appeal reference: TC/2023/08339
INCOME TAX – procedure – application for strike out – jurisdiction – requirement to notify HMRC – application to bring a late appeal
Before
TRIBUNAL JUDGE ABIGAIL MCGREGOR
Between
MARK CURTISAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentGeraint Jones KC, of counsel, instructed by Rainer Hughes LLP for AppellantLaura Ruxandu, of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs for RespondentsDECISION

Introduction

[1]This was a hearing to consider two issues:(1) An application by HMRC to strike out on the basis of lack of jurisdiction; and(2) An application by the Appellant for permission to bring a late appeal.[2]The underlying substantive tax matters relate to the tax treatment of sums received on the sale of a business. The taxpayer reported the sums as subject to capital gains tax. HMRC considers that the sums should have been treated as income under the sale of occupational income legislation.

law

[3]Under Rule 8 of the FTT rules, subsection (2) reads as follows: (2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—(a) does not have jurisdiction in relation to the proceedings or that part of them; and(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.[4]Section 31 of the Taxes Management Act 1970 (TMA 1970) provides for rights of appeal and includes the following relevant rights: (1) An appeal may be brought against – (a) […] (b) Any conclusion stated of amendment made by a closure notice under section 28A or 28B of this Act (amendment by Revenue on completion of enquiry into return), (c) […] (d) Any assessment to tax which is not a self-assessment.[5]Section 31A(1) of TMA 1970, reads as follows: (1) Notice of an appeal under section 31 of this Act must be given (a) In writing, (b) Within 30 days after the specified date, (c) To the relevant officer of the Board.[6]Under the remainder of section 31A of TMA 1970 (to the extent relevant):(1) the specified date is identified as the date of issue of a closure notice or assessment; and(2) the relevant officer is identified as the officer who issued the closure notice or assessment; and(3) the notice of appeal must specify the grounds of appeal.[7]Section 49D of the Taxes Management Act 1970 provides:(1) This section applies if notice of appeal has been given to HMRC.(2) The appellant may notify the appeal to the tribunal.(3) If the appellant notifies the appeal to the tribunal, the tribunal is to decide the matter in question.(4) Subsections (2) and (3) do not apply in a case where– (a) HMRC have given a notification of their view of the matter in question under section 49B, or (b) HMRC have given a notification under section 49C in relation to the matter in question.(5) In a case falling within subsection (4)(a) or (b), the appellant may notify the appeal to the tribunal, but only if permitted to do so by section 49G or 49H.[8]Section 49 of TMA 1970 provides:(1) This section applies in a case where-- (a) notice of appeal may be given to HMRC, but (b) no notice is given before the relevant time limit.(2) Notice may be given after the relevant time limit if-- (a) HMRC agree, or (b) where HMRC do not agree, the tribunal gives permission.[9]Rule 20 of the FTT Rules provides: (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. … (4) If the notice of appeal is provided after the end of any period specified in an enactment referred to in paragraph (1) but the enactment provides that an appeal may be made or notified after that period with the permission of the Tribunal (a) the notice of appeal must include a request for such permission and the reason why the notice of appeal was not provided in time; and (b) unless the Tribunal gives such permission, the Tribunal must not admit the appeal.

evidence

[10]I heard oral evidence from:(1) Mr Sanjay Panesar, Senior Partner at Rainer Hughes, the solicitors appointed to act for Mr Curtis; and(2) Mr Ashley Jones, HMRC officer in the Fraud Investigation Service, who had taken over as the lead case worker on the enquiry into Mr Curtis’ affairs in July 2022 and had issued the closure notice and discovery assessment that are in dispute.[11]Both witnesses were cross-examined.[12]I found both witnesses to be honest and to try to answer questions to the best of their recollection, albeit acknowledging that it wasn’t possible to recall every small detail from two years previously.[13]I have not felt it necessary to summarise every piece of Mr Panesar’s evidence. However, I summarise the evidence that covered the following matters that I consider to have been core to the decision:(1) The system of post within his firm;(2) The ticking of the box on the notices of appeal that concerned the making of an appeal to HMRC; and(3) The system for obtaining copies of letters to send by email.[14]With regard to the system of post, Mr Panesar explained that the letter dated 16 May 2023 to Mr Jones was sent by post and not by email. The letter contains a Rainer Hughes reference which included his initials and those of a junior member of staff who was working on the matter “NW”.[15]He further explained that the letter was prepared, probably by NW, but possibly by another junior member of staff that was covering her maternity leave “DI”. It was electronically signed by Mr Panesar.[16]Mr Panesar’s evidence was that letters to be sent out went through the following procedure:(1) Letters were placed into an out-tray on the receptionist’s desk by the relevant member of staff who had prepared the letter;(2) Towards the end of the day, the receptionist would check that the letter contained the correct enclosures as referred to in the letter and place the relevant documents into the envelope;(3) She would frank the envelope with the appropriate postage and take it to the post office that is a few doors down from their office; and(4) She would also record the fact of the letter being posted, to whom, their postcode and the form of post (i.e. first class, second class, etc.) in the log book, which was held in electronic form.[17]Mr Panesar’s evidence was that, while most communication with Mr Jones had been by way of email, there had been some postal correspondence. When pressed, he could not identify any specific correspondence that had been via post. He stated that post had been used for the 16 May 2023 letter because it was a formal step in submitting an appeal.[18]With regards to the ticking of the box with the answer “no” in response to question 7 on the notice of appeal, which asked “Did you appeal the original decision to HMRC?”, Mr Panesar stated that this had been a mistake. He said that someone junior had filled out the form and that it had been a mistake. When asked about the same box on the November 2023 notices of appeal, he stated that these must also have been mistakes.[19]When asked about the timing of the sending of the letters and the notice of appeal to HMRC, Mr Panesar accepted that the letter he stated was sent by post to Mr Ashley Jones on 16 May 2023 was sent at around the same time as the notices of appeal to the Tribunal were sent but he acknowledged that the letter would likely not, in the ordinary course of the despatch of post from his firm’s office, have left the office until an hour or so after the emails submitting the notices of appeal to the Tribunal were sent.[20]Mr Panesar was then asked questions about the PDF of the 16 May 2023 letter that was attached to an email sent to Mr Ashley Jones on 24 July 2023. Mr Panesar stated that the PDF could have been created from either the practice management system or copied from the paper file. Having initially suggested that it would have come from the electronic practice management system, he later said that it had probably been scanned from the paper file, because usually when a PDF is created from the practice management system it would be a file copy with no header or footer, whereas this one contained all the headers and footers.[21]Mr Ashley Jones gave evidence regarding the usual process for post being received by HMRC, he explained that:(1) Letters received by HMRC are sent to a central scanning team, which is an administrative team who will scan the letter into their own computers and then upload the scanned copy into the case flow management system;(2) The letters are uploaded using the case flow reference included in the letter. If there is no case flow reference, the admin team are expected to review the rest of the correspondence to try to identify the relevant case file, including contacting relevant officers referred to in the letter;(3) Investigators on the relevant file will receive a notification that new post has been received. The investor will then review the post, confirm it relates to their case and confirm receipt of the letter.[22]Mr Ashley Jones explained that the cover letter dated 16 May 2023, of which he received a copy on 24 July 2023, did not contain a case flow reference. However, he explained that he was the only Ashley Jones in the Fraud Investigation Service and the enclosures to the letter did contain a case flow reference. In his experience, the central scanning team would be expected to use those pieces of information in order to ensure that the post was added to the correct file in the case flow system. He further confirmed that he did not receive any contact or notifications from the central scanning team regarding a letter dated 16 May 2023.[23]He also explained that he had looked at the metadata of the scanned copy of the 16 May 2023 letter that was sent to him by email on 24 July 2023. The metadata showed that the PDF had been created on 24 July 2023.

findings of fact

[24]While this decision does not deal with the underlying substantive tax treatment, I have made some limited findings of fact only to the extent relevant to determining the issues dealt with in this decision. These findings are based on the oral evidence I heard, and the documentary evidence provided in the bundle.[25]HMRC opened an enquiry into Mr Curtis’ 2016/17 tax return on 27 September 2018.[26]HMRC issued a final closure notice for that enquiry on 19 April 2023. This notice included amendments to the tax return which resulted in an increase in tax due of £1,026,379.60.[27]On 18 April 2023, HMRC also issued a discovery assessment for tax year 2017/18, assessing tax of £240,188.30.[28]On 16 May 2023, notices of appeal were filled out by a member of staff at Rainer Hughes and signed electronically by Mr Panesar. The completed forms were emailed to the relevant email address at the Tribunal in emails timed 14:58 and 14:59 pm on that day. The emails were not copied to Mr Ashley Jones or anyone else at HMRC. These appeals will be referred to as the “May 2023 appeals”. Whether and how these documents were despatched to Mr Ashley Jones is in dispute and is discussed further below. Further relevant facts arising from these forms are set out below (with single answers where they were the same for each form and two separate answers where they were different):(1) Question 6 “What is your appeal about?” was answered: (a) “Discovery Assessment for year ended 5 April 2018 for £240,188.30”; and (b) “Closure Notice dated 19 April 2023”.(2) In Question 7 “Did you appeal the original decision to HMRC?”, the box “No” was ticked;(3) In Question 9 “Did you have a review of the original decision?”, the box “No” was ticked;(4) In question 11 “What is your dispute about?”, the box “The amount HMRC claim I owe” is filled out with the number: (a) “£240,188.30” for the discovery assessment appeal; and (b) “£1,474,887.51” in the closure notice appeal.(5) Enclosed with the T240 forms were separate documents containing grounds of appeal.(6) The closure notice appeal also enclosed a “provisional skeleton argument” dated 10 May 2023 from Mr Geraint Jones KC. Both the grounds of appeal and the skeleton argument concerned the substantive underlying tax question.[29]On 13 July 2023, NW emailed Mr Ashley Jones. In that email, she referred to the appeals having been submitted to the Tribunal and that they were still awaiting acknowledgement. The email requested HMRC to consider hardship and for HMRC to stay any enforcement action pending determination of the appeals.[30]On 24 July 2023, Mr Panesar called Mr Ashley Jones, having previously spoken to a member of HMRC’s debt management team, following Mr Curtis’ receipt of a number of letters threatening enforcement action. It was during this call that the validity of the May 2023 appeals was first raised. Mr Ashley Jones explained that he considered that the appeals were invalid because no appeal had been made to HMRC first. Mr Panesar disagreed and said that the appeals were valid and that HMRC had been notified of them.[31]Later on the same day, Mr Panesar sent by email copies of the 16 May 2023 letter, both notices of appeal for the May 2023 appeals and the enclosed grounds of appeal. The covering email highlighted that Mr Panesar did not understand why HMRC were suggesting the appeals were invalid.[32]On 25 July 2023, Mr Ashley Jones emailed Mr Panesar to update on the progress of the postponement application.[33]On 28 July 2023, Mr Ashley Jones emailed Mr Panesar to confirm that collection of the tax had now been postponed. The email also explained, for the first time in writing, that he was of the view that no valid appeal was provided to HMRC within the statutory timeframe. He went on to say that when HMRC receive notification from the Tribunal of the May 2023 appeals, HMRC’s position will be that the Tribunal doesn’t have jurisdiction and applications for strike out would be made. He invited withdrawal of the appeals and also suggested making an application for a late appeal to him, explaining why a late appeal should be accepted.[34]Further correspondence ensued between Mr Ashley Jones and Mr Panesar regarding the legal interpretation of the appeal provisions.[35]On 25 August 2023, the Tribunal issued directions consolidating the two May 2023 appeals to be heard together and setting a time frame for HMRC to deliver the statement of case within 60 days of that date.[36]On 24 October 2023, HMRC made its application for strike out of the May 2023 appeals.[37]On 2 November 2023, the appellant submitted two further notices of appeal to the Tribunal. These are referred to as the November 2023 appeals. These were filled out with the same answers to the relevant questions as set out in paragraph 28 above. In addition:(1) Question 16 “Are you in time to appeal to the tax tribunal?” was answered “no”;(2) Question 17 “Why are you late or might be late, with your appeal to the tax tribunal?” was answered:
““There is an extant appeal in exactly the same terms as the instant appeal, which belatedly HMRC has argued should be struck out for highly technical reasons (none admitted). Permission is sought for this appeal to be pursued out of time. This permission is sought without prejudice to the Appellant's position that the identical appeals under case numbers TC/2023/08339 and TC/2023/08341, which HMRC seek to have struck out, are each good and valid appeals. The Appellant hereby APPLIES for a wasted costs order, in respect of any hearing to deal with the without prejudice application for permission to appeal out of time.”
[38]On 22 February 2024, HMRC wrote to the Tribunal asking for the November 2023 appeals to be consolidated with the May 2023 appeals. The same email also informed the Tribunal that the application for strike out should be treated as covering the November 2023 appeals.[39]Both the May 2023 appeals and the November 2023 appeals were subsequently consolidated to proceed under the same case reference in directions issued by the Tribunal on 6 June 2024. These directions also provided deadlines for the submission of all documents required to proceed towards the hearing of the strike out application and the application to bring late appeals which would be heard together.

submissions on may 2023 appeals

[40]Ms Laura Ruxandu made the following submissions on behalf of HMRC.[41]HMRC submits that the May 2023 appeals should be struck out for lack of jurisdiction on the following basis:(1) Mr Curtis has not made an appeal within the scope of section 31A of TMA 1970 to HMRC before notifying the May 2023 appeals to the Tribunal;(2) Section 49D of TMA 1970 provides that no appeal can be made to the Tribunal if no section 31A appeal has been made;(3) Rule 8(2) of the Tribunal Procedure Rules obliges the Tribunal to strike out the appeals where there is no jurisdiction.[42]In support of their position that section 31A and 49D of TMA 1970 require an appeal to be made to HMRC before an appeal is notified to the Tribunal, HMRC refer to a number of decisions made by this Tribunal, in particular Flash Film Transport Ltd v HMRC [2019] UKFTT 4 (TC) and Rotaru v HMRC [2022] UKFTT 80 (TC).[43]HMRC submit that the evidence shows that Mr Ashley Jones, as the relevant officer under section 31A, had not received an appeal prior to notification to the Tribunal because he did not receive the letter dated 16 May 2023. While HMRC accept that the letter was included in the log book at Rainer Hughes on that day, there was no system in place for checking that the letters were actually subsequently dispatched. Given that Mr Jones did not receive the letter, HMRC say that, on the balance of probabilities, the letter was not sent on 16 May 2023.[44]Further, even if the letter had been sent on 16 May 2023, this would not have met the requirements of section 31A because:(1) It was not an appeal to HMRC, but notification of an appeal made to the Tribunal. Sending a copy of notices of appeal to the Tribunal does not meet the statutory requirements because it does not meet the policy objective of allowing consideration of the appeal and the offering of a statutory review;(2) A letter is, pursuant to section 115 of TMA 1970 and section 7 of the Interpretation Act 1978, deemed to be delivered in the ordinary course of post, which would not have been on 16 May 2023 and therefore must have been made after the notices of appeal were submitted to the Tribunal by email on 16 May 2023;[45]The appellant’s position that an appeal within section 31A to HMRC had been made is undermined by the taxpayer having ticked the box “no” on the notice of appeal when asked whether an appeal had been made to HMRC first.[46]Mr Geraint Jones KC made the following submissions on behalf of the appellant.[47]He submitted that there is no proper basis for concluding anything other than that the 16 May 2023 letter was committed to the post on that day by the receptionist at Rainer Hughes.[48]Section 7 of the Interpretation Act 1978 is a deeming provision which deems the latest date of receipt. It does not indicate the earliest date that the letter could have been received, and statute does not prevent you from showing that it was received earlier than that date. Case law on the postal rule shows that letters are sent when they are actually posted and therefore the 16 May 2023 letter was treated as sent and served on that day, not the day after.[49]Mr Geraint Jones KC pointed to cases on contract formation, including Household Fire and Carriage Accident Insurance v Grant [1878/79] LR 4 Ex 216, and Dunlop v Higgins [1848] 1 HL Cas 381.[50]He submitted that the law takes no account of a part of the day. Therefore, the letter sent on 16 May 2023 should be accepted as having been posted on that day and received on that day by HMRC.[51]He also submitted that HMRC and the Tribunal’s conclusions in Flash Film were wrong when they concluded that “a person can only notify his appeal to the Tribunal if he has first appealed to HMRC”. He submits that this interpretation fails to read section 31A of TMA 1970 properly. That provision provides only that HMRC must be given “notice of appeal”. He highlighted a distinction between serving “a notice of appeal” and “giving notice”. He submitted that a taxpayer is only obliged to put HMRC on notice that they are appealing against HMRC’s decision, there is no obligation to serve a specific notice of appeal, and they do not need to include grounds of appeal.[52]He submitted that the legislation does not require that there has been “prior” notice, rather it provides that notice must be given and if said notice has been given, the appellant may notify the appeal to the Tribunal.[53]His conclusion therefore is that:(1) The letter of 16 May 2023 was treated, according to the common law postal rule, as being given on 16 May 2023 and since the law takes no account of part of a day, it doesn’t matter whether it was committed to the post before or after the email to the Tribunal on that day;(2) This letter gave HMRC due notice of appeal in accordance with section 31A of TMA 1970; and(3) Therefore Mr Curtis was entitled to notify an appeal to the Tribunal under section 49D of TMA 1970.[54]Mr Geraint Jones KC also submitted that the application for strike out by HMRC was an abuse of process because it was made so late. He noted that HMRC made the application on 24 October 2023 and there was no explanation for the tardiness in making the application. He acknowledged that there is no specific timeline in the Tribunal Procedure Rules for making a strike out application, but he said that, therefore, the Civil Procedure Rules should be applied by analogy. Under CPR, he submitted, challenges to jurisdiction must be made promptly and these challenges were not made promptly.[55]The analogy he provided was where a litigant in the High Court had failed to raise a point on jurisdiction promptly. He submitted that the High Court would deem a waiver of the relevant point, not to vest it of jurisdiction that it doesn’t have, but to prevent the relevant litigant from raising that point.

submissions on November 2023 appeals

[56]With regard to whether HMRC is entitled to pursue an application to strike out the November 2032 appeals, Ms Ruxandu submitted that:(1) HMRC alerted the Appellant and the Tribunal that HMRC considered that he same question of jurisdiction applied in relation to the November 2023 appeals in their email of 22 February 2024;(2) There is no prescribed approach for making an application for strike out and it can therefore be made by email;(3) The matter was also addressed in her skeleton argument;(4) All four appeals have been consolidated by the Tribunal to proceed together, and directions were issued after that consolidation and therefore apply to all four appeals;(5) In any event, the question of jurisdiction of this Tribunal can and must be decided regardless of whether it is raised by a party.[57]With regards to the strike out of the November 2023 appeals, Ms Ruxandu proceeded on two bases. The first is the same as for the May 2023 appeals, i.e. that simply sending HMRC a copy of the notices of appeal to the Tribunal does not meet the requirements of section 31A. Therefore the Tribunal does not have jurisdiction to consider the November 2023 appeals, and they must be struck out under rule 8(2).[58]The second proceeds on the premise that the prior appeal to HMRC was the attaching of the May 2023 appeals to the email sent on 24 July 2023. As noted above, HMRC do not accept that this would be a prior appeal, but they also say that, even if it was, this notice was late. Where a notice to HMRC is late, it can only be considered by the Tribunal under section 49 if HMRC has been given an opportunity to respond to an application to them directly under sub-section (2).[59]She relied on the Court of Appeal decision in R (oaoPML Accounting) v HMRC, which is cited in Flash Films, which states that “HMRC must be asked to agree to a late appeal”.[60]Since in this case, the Appellant has not asked HMRC to allow their late appeal, the Tribunal again does not have jurisdiction to consider the application to make a late appeal and the application to bring a late appeal must therefore be struck out.[61]Mr Geraint Jones KC objected to the strike out application extending to cover the November 2023 appeals. In his view, an email to the Tribunal is not sufficient to extend the scope of the strike out application because no proper notice has been put into the Tribunal and no directions had been made in respect of it.[62]The Appellant was granted an opportunity to make specific submissions in relation to the potential strike out of the November 2023 appeals after the hearing in order to ensure that their rights under Rule 8(4) were adhered to.[63]The Appellant’s submissions were that HMRC’s argument about the application of section 49 is only relevant if there had been a late notice of appeal to HMRC and in this case there had been no late notice. This was on two alternative bases. Either due notice had been given on 16 May 2023, according to the same arguments submitted in relation to the May 2023 appeals. Alternatively, even if I decide that the 16 May 2023 letter was deemed received on 17 May 2023 in accordance with section 7 of the Interpretation Act 1978, that date is still in time for notice of an appeal to be provided to HMRC. HMRC has not proven that the letter was not received and therefore the deemed receipt is on 17 May 2023.[64]As to the argument that sending a copy of notices of appeal submitted to the Tribunal is not “notice of appeal” to HMRC, he submitted that this is fanciful and devoid of merit. The notices of appeal make it plain that the closure notice and the discovery assessment are challenged by the taxpayer and on what grounds.

discussion

[65]In order to resolve this application, I first need to decide what the requirements of section 31A and 49D of TMA 1970 are in terms of notifying HMRC, which is a pure question of law.[66]HMRC identified a pertinent section of Flash Film which reads as follows:
“73. … [I]t is not for the parties to agree on the scope of the Tribunal’s jurisdiction, and the Tribunal cannot ignore a question of jurisdiction because it has not been raised as an issue. In R (oao TN (Vietnam)) v First-tier Tribunal (Immigration and Asylum Chamber) [2018] EWHC 3546 (Admin), Singh LJ gave the only judgment and said at [32]: “…questions of jurisdiction cannot be determined by consent, still less by default. The question whether or not a tribunal has jurisdiction to determine a question is a question of law. The answer to it depends upon the correct interpretation of the legislation creating its jurisdiction and cannot depend on the conduct of one of the parties.” 74. I therefore considered whether HMRC were able, as a matter of law, to treat a direct tax appeal made to the Tribunal as if it had been made to HMRC, so that the Tribunal has the necessary jurisdiction to decide the dispute. In Patel v HMRC [2018] UKFTT 185 (TC), the Tribunal (Judge Brannan) considered a similar issue, namely whether HMRC’s care and management powers allowed them to accept a self-assessment return filed by a taxpayer on a voluntary basis, so they could dispense with the requirement at TMA s 8(1) that HMRC must serve a notice to a taxpayer requiring the filing of the return. Judge Brannan considered the case law on HMRC’s care and management powers, including R (oao Wilkinson) v IRC [2005] UKHL 30 at [21] and IRC v National Federation of Self-Employed and Small Businesses [1981] STC 260, before deciding at [112]: “…it is not open for HMRC to dispense with the requirement that it must serve a notice under s.8(1) in order for a taxpayer's return to be a return ‘under s.8’. This is an express statutory requirement that cannot be waived by the exercise of HMRC's discretion.” 75. In my view, the position is the same in relation to TMA s 49D, which provides that an appellant can only notify his appeal to the Tribunal if he has first appealed to HMRC. HMRC’s care and management powers do not allow them to override that statutory requirement, and it follows that the Tribunal has no jurisdiction to decide a direct tax appeal, unless it has first been made to HMRC. 76. The same conclusion has previously been reached in other Tribunal judgments, see Fiorini v HMRC [2017] UKFTT 610 (TC) (Judge Beare), and Thuishyanthan v HMRC [2016] UK FTT 0186 (TC) (Judge Clark). That it is correct was recently confirmed, albeit obiter, in R(oao PML Accounting) v HMRC [2018] EWCA (Civ) 2231, where Longmore LJ said at [56] that: “…HMRC must be asked to agree to a late appeal before any question of applying to the tribunal for permission can arise. That is for the (perhaps obvious) reason that any tribunal would wish to know, before considering whether to grant permission for a late appeal, the view of HMRC about the reasonableness of the excuse for not giving notice before the 30 days had expired.” 77. There are also other reasons why appeals have to be made first to HMRC: the Officer receiving the appeal may consider the reasons and change his position, and the appellant has the opportunity to ask for, or accept, a statutory review carried out by a different HMRC Officer. Appeals made first to HMRC may thus be settled between the parties without reference to the Tribunal.”
[67]The Appellant invites me to conclude that this decision was wrong and that it contained a misinterpretation of section 31A.[68]The full relevant text of the legislation is set out above. The core parts I require in order to reach a conclusion are as follows:[69]Section 31(1)(a) provides that “an appeal may be brought”. This provision sets out the rights of a taxpayer to appeal against certain specified decisions made by HMRC. This section does not refer to the avenue for that appeal. It simply determines the right to appeal. There is no dispute in this case that the Appellant has rights of appeal under section 31 against both the closure notice and the discovery assessment.[70]Section 31A is headed “Appeals: notice of appeal” and sets out the requirements for making an appeal. It specifically deals with appeals made “under section 31” and provides that notice of an appeal under section 31 of this Act must be given in writing, within 30 days after the issue of the closure notice or making of the assessment and to the relevant officer of the board.[71]This provision clearly requires that the appeal right given under section 31 must be exercised by notice to HMRC in writing, within 30 days of the decision and to the officer that issued the decision. Section 31A cannot be met by notifying an appeal to the Tribunal alone.[72]Section 49D(1) provides that section 49D applies “if notice of appeal has been given to HMRC”. This provision is setting out the circumstances in which the rest of section 49D can apply. The second sub-section provides the right of a taxpayer to notify “the appeal” to the tribunal. This right is not unfettered, however. The rest of the section sets out the circumstances in which the taxpayer’s right to notify the appeal to the tribunal is restricted, being where the appellant requires HMRC to review the matter in question or where HMRC has offered a review.[73]The use of the past tense in section 49D(1) “has been given”, on a plain reading of the language requires that the notice of appeal being given to HMRC must happen before the appeal is notified to the Tribunal. I therefore do not accept Mr Geraint Jones KC’s invitation to conclude that Flash Films was wrongly decided. I find that the legislation provides that an appeal must be made to HMRC before an appeal can be notified to the Tribunal.[74]Having reached that conclusion, I must now turn to a question of fact regarding the letter of 16 May 2023. We spent a lot of time at the hearing discussing this letter and heard evidence from both witnesses about the process of postal deliveries and receipts. Having considered all this evidence, and noting that HMRC expressly were not suggesting that there had been any wrongdoing on the part of Rainer Hughes, I do not accept Ms Ruxandu’s primary submission that, on the balance of probabilities, the letter never reached the post. I find that the letter was printed, the envelope filled with the necessary enclosures and delivered to the post office on 16 May 2023 as per the electronic log book maintained by the firm.[75]I also find that this letter was not received by Mr Ashley Jones at HMRC. This was his sworn evidence, and it was not challenged.[76]Having reached those factual conclusions, it is necessary to consider when the information contained in that letter should be considered to be given to HMRC.[77]I agree with Mr Geraint Jones KC that section 7 of the Interpretation Act 1978 is a deeming provision regarding the date for documents that are served by post. He further submits that it is only relevant to deeming the last date for delivery, i.e. only if another provision does not show that it has been delivered earlier. Specifically he relies on the common law postal rule, as set out in cases relating to contractual interpretation, which would treat it as delivered on the day of posting. Effectively, he submits, section 7 of the Interpretation Act 1978 provides a long stop date.[78]I do not agree. While I accept that section 7 leaves open the possibility that a different deliver time could be proven, I consider that this contrary position could be either before or after that time. Section 7 does not provide a long stop date but a deemed date unless evidence shows otherwise. I do not consider that Parliament can have intended the “contrary proof” referred to in section 7 to include a common law deeming provision. I have seen no evidence the provides proof of delivery before or after the section 7 deemed delivery. Therefore, it would be deemed to be delivered in the ordinary course of first-class post, which would be on 17 May 2023.[79]As a result of those conclusions, Mr Curtis had not met the statutory preconditions for bringing an appeal to the tribunal when the May 2023 appeals were submitted because no appeal had been made to HMRC prior to the notification of the appeals to the Tribunal. Under rule 8(2), I must therefore strike out the May 2023 appeals.[80]Turning to the November 2023 appeals, having found that the 16 May 2023 letter was deemed to have been delivered to HMRC on 17 May 2023, I now have to decide whether sending a copy of tribunal notices of appeal to HMRC is sufficient to meet the requirements of section 31A and 49D.[81]Ms Ruxandu’s position was that it could not, referring to the policy objective of allowing consideration of the appeal and the offering of a statutory review. I agree that the statutory framework sets out a well-trodden path that the appeal to HMRC would, in the normal course of events, be followed by either a request for a review by the taxpayer under section 49B or an offer of a review from HMRC under section 49C. The taxpayer then has a further window of opportunity to notify an appeal to the Tribunal, with the timing of that window depending on whether and when a review ensued.[82]I also note the comments in Flash Films about the policy reasons for allowing and encouraging an appeal process to be pursued to HMRC first, with a view, hopefully, to resolving disputes without recourse to the Tribunal.[83]Mr Geraint Jones KC submitted that there is no prescribed form for a notice under section 31A and that it simply requires the taxpayer to tell the relevant officer in writing that they object to the decision and are appealing it.[84]However, what I must consider is whether the statutory language provides any further requirements for the notice of appeal given to HMRC.[85]Under section 31A of TMA 1970, the requirements of the notice of appeal given to HMRC are that they be in writing, delivered in the statutory time frame and to the officer in question. As Ms Ruxandu pointed out, it is not correct to say that grounds of appeal are not required – section 31A(5) clearly requires that grounds of appeal are included in the notice of appeal sent to HMRC. A completed form T240 quite clearly meets the requirement of being in writing and containing the grounds of appeal.[86]I considered whether the statutory framework required the taxpayer to engage in the next steps of the process, i.e. to wait to be sent a view of the matter letter, be offered a review, consider whether to accept it and so on. I find that none of those steps are compulsory.[87]I am supported in that conclusion by the wording in section 49A of TMA 1970 which sets out:(1) This section applies if notice of appeal has been given to HMRC.(2) In such a case – (a) The appellant may notify HMRC that the appellant requires HMRC to review the matter in question (see section 49B); (b) HMRC may notify the appellant of an offer to review the matter in question (see section 49C); or (c) The appellant may notify the appeal to the tribunal (see section 49D).[88]There are no restrictions on section 49A(2)(c), temporal or otherwise. The appellant has three clear options: to request a review, to wait for an offer of a review to HMRC or to notify the appeal to the tribunal.[89]Therefore I consider that, while it would not be a normal course of action for a taxpayer intending to engage in the statutory review process and it would not enable the resolution of the dispute before the appeal proceeded to the Tribunal, the statutory framework only requires that the taxpayer gives HMRC notice of its appeal. A copy of a completed form T240 would meet this requirement, but only if it is provided to HMRC prior to the notice of appeal being submitted to the Tribunal.[90]As noted above, this requirement was not met in relation to the May 2023 appeals, but given the finding that it was deemed delivered on 17 May 2023, the appeal to HMRC had been met by the sending of the copies of the notices of appeal in the 16 May 2023 letter. Therefore the November 2023 appeals cannot be struck out for lack of jurisdiction on that ground.[91]Section 49 of TMA 1970 only deals with appeals to HMRC that have been notified late. Therefore, it is of no relevance to the November 2023 appeals as I have found that the notice of appeal to HMRC was given in time on 17 May 2023.[92]Where notice of appeal has been given to HMRC in time and there has been no request for or offer of a review, the third option in section 49A applies. The taxpayer may notify the Tribunal of its appeal. The legislation does not provide a time limit for notifying the appeal to the Tribunal in these circumstances. Therefore I find that the November 2023 appeals were not late.[93]The November 2023 appeals should therefore proceed towards a hearing, and directions will be issued to that effect.[94]Finally, I must deal with Mr Geraint Jones KC’s submission that HMRC were late in making their strike out applications and that this is contrary to the CPR obligation to raise jurisdictional issues promptly. I have two observations to make on this matter.[95]Firstly, the application to strike out was made within the 60-day time frame set out in the directions issued on 25 August 2023 for the delivery of the statement of case. The application to strike out also included the reasonable request for the obligation on HMRC to produce a statement of case to be deferred until after a decision on the strike out is made. HMRC has not failed to comply with any statutory deadline.[96]Secondly, I do not accept that the CPR obligation to raise jurisdictional issues promptly is relevant in the context of a Tribunal appeal. This Tribunal is formed by statute, and it has no inherent jurisdiction. It can only consider matters that are set out in statute. If the statutory pre-conditions for an appeal to be decided by this Tribunal have not been met, it is not possible for the Tribunal to decide the matter in question. That is not subject to a time limit, nor is it an obligation on HMRC (or a taxpayer in another context) to highlight the lack of jurisdiction in a particular way or on a particular timeline. As Ms Ruxandu said at the hearing, the Tribunal can raise a jurisdictional issue of its own volition, and the Tribunal Procedure Rules do not allow for any discretion where there is no jurisdiction. If HMRC had not made an application to strike out on jurisdictional grounds as they did in October 2023, the appeals would likely have proceeded to a hearing where the issue should then have been addressed.[97]Therefore I do not accept that any procedural impropriety has occurred in relation to the application for strike out.

disposition

[98]For the reasons set out above, I find that:(1) Notice of an appeal must be given to HMRC before an appeal can be notified to the Tribunal;(2) No such appeal was made before the May 2023 appeals were notified to the Tribunal;(3) Therefore the May 2023 appeals are struck out for lack of jurisdiction;(4) Notice of appeal to HMRC had been given prior to the November 2023 appeals and therefore the application to strike out these appeals is refused; and(5) The November 2023 appeals were not late and therefore hearing of those appeals will proceed.

Right to apply for permission to appeal

[99]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: 22nd DECEMBER 2025