Gary Russell v The Commissioners for HMRC [2026] UKFTT 367 (TC)

[2026] UKFTT 00367 (TC)

Case No TC09811

FIRST-TIER TRIBUNAL

TAX CHAMBER

Date Judgment date: 11 March 2026

Between

GARY RUSSELLAppellant

Between

THE COMMISSIONERS FORRespondents

HIS MAJESTY’S REVENUE AND CUSTOMSRespondent

The Tribunal determined the appeal without a hearing under the provisions of Rule 29(3) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (FTTTC Rules) having first read the Notice of Appeal dated 24 July 2025 (with enclosures) and HMRC’s application dated 4 December 2025 for appeal to be struck out (with enclosure). The Appellant was given an opportunity to make representations on HMRC’s application, but no representations were forthcoming.

Location: Decided on the papers

Appeal reference: TC/2025/03508

Income tax – Simple assessment – Stike out application on grounds of no jurisdiction – Application allowed

Decided by:

TRIBUNAL JUDGE MATTHEW DONMALL

DECISION

[1]This is an application by the Respondents (HMRC) for an order striking out the Appellants appeal (the Application). For the reasons set out I allow the Application and I strike out the appeal.

The law on strike out applications

[2]Rule 8 of the FTTTC Rules provides for striking out a party’s case, or part thereof.

[3]So far as relevant to the Application under Rule 8(2)(a), the Tribunal must strike out the whole or part of the proceedings if the Tribunal does not have jurisdiction in relation to the proceedings or that part of them.

[4]As to jurisdiction, the Tribunal was created by s. 3(1) of the Tribunals, Courts and Enforcement Act 2007, ‘for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act’. It follows that its jurisdiction is derived wholly from statute.

[5]Under rule 8(3)(c), the Tribunal may strike out the whole or a part of the proceedings if the Tribunal considers that there is no reasonable prospect of an appellant’s case, or part of it, succeeding.

[6]As regards rule 8(3)(c), the relevant test and approach are summarised by the Upper Tribunal in the judgment in First de Sales v HMRC

[2018] UKUT 396 (TCC)

(paragraph [33]) (First de Sales) as follows:(1) The question is whether the Appellant has a "realistic" as opposed to a "fanciful" prospect of succeeding in his appeal.

(2) The Appellant’s case must therefore have some degree of conviction, in that it is more than merely arguable.

(3) In answering the question, no "mini trial" must be conducted.

(4) It is not necessary to take at face value assertions, without analysing what is said, particularly if contradicted by contemporaneous documents.

(5) Consideration should be taken not only of the evidence available at the time the application is made, but also what evidence could reasonably be expected to be available at the hearing.

(6) The tribunal should not make a final decision where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence.

[7]Rule 8(4) provides that the Tribunal may not strike out the whole or a part of the proceedings under paragraphs (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.

[8]The burden of proof in the Application lies with HMRC, as they are seeking to strike out all or part of the Appellant’s case. The standard of proof is on a balance of probabilities.

The background

[9]The background chronology from the limited papers before the Tribunal is as follows.

[10]I understand that on 19 September 2024, HMRC issued a Simple Assessment under section 28H of the Taxes Management Act 1970 (TMA 1970) in the sum of £21,162.45 as underpaid tax on income received in the tax year 2023-24 (the Assessment). A copy of the Assessment has not been put before the Tribunal. The Application explains that there were three sources of income in the relevant year, each of which had had 20% tax deducted at source:(1) FR Distribution Ltd, £2,238 gross income, £238 (20%) tax deducted at source.

(2) National Employment Savings Trust, £1,947 gross income, £389.40 tax deducted.

(3) St James’ Place SIP, £134,811 gross income, £26,961.90 tax deducted at source.

[11]The whole of the income in the year was therefore £138,997. HMRC calculated that the correct amount of tax on this income was £48,751.65, applying the basic rate of 20%, higher rate of 40%, and additional rate of 45% upon the appropriate portions of that income, and noting that that level of income resulted in the loss of the tax-free Personal Allowance. Out of that total liability of £48,751.65, only £27,589.20 had already been paid, leaving the amount of £21,162.45 as assessed in the Assessment.

[12]On 24 October 2024, the Appellant wrote to HMRC. He stated that he was made redundant from his employment with FR Distribution on 20 April 2023. He had committed to a home extension, and because that was underway, he paid for it “by using up my full pension and have paid the correct amount of tax on each drawdown”. He went on:

“Because of this one off spend it has put me into the high earnings bracket and your calculations from that state I owe £21,162.45 which is way beyond my means.”

[13]On 25 June 2025, HMRC responded. They treated the letter of 24 October 2024 as a statutory query of the Assessment, apologised for the delay in replying, and maintained that there was no change to the amount due:

“The underpayment of tax has arisen due to your pension from St James’ SIP being charged at only 20%. Due to your level of income you were liable to tax at the higher and additional rates and no personal allowances.”

[14]On 4 July 2025, the Appellant wrote to HMRC by way of an appeal (the Appeal to HMRC). The Appeal to HMRC stated as follows:

“I would like to register another appeal against the above assessment tax calculation and your decision that the “underpayment of tax has arisen due to your pension from St James SIP being charged at only 20%, Due to your level of income you were liable to tax at the higher and additional rates and no personal allowances.”

I was actually made redundant and had to use my pension to complete an extension to my home to fund the build which was never the plan, I have remained unemployed ever since due to medical and problems with my mental health because of this. I paid all tax at source at the rates specified by yourselves to St James. It has taken you 6 months to reply, and of course I thought my initial appeal had been honoured. I am still on benefits and have a mortgage on my property which is in arrears and I can only afford to pay the standard amount. I have also just received a notice that I will no longer get CSA from my childs [sic] mother as she is out of work. I will take this to a tribunal if necessary as at no point was I informed that I would need to pay additional tax on top of what was correctly charged on each individual transaction. I cannot pay this amount. I will lose my house and everything I have tried to provide for myself and daughter after a bad marital split. We are both under treatment for our mental health and this is just devastating news to us. Please look again at the circumstance, yes I was using my pension as income but paid the correct amount of tax for each transaction. I was in fact unemployed during this time. It was a one off influx of money as I couldn’t fulfil the criteria for a loan once I had been made redundant. There has got to be leniency on this and the way in which this has been overlooked for 6 months is negligent. Below is the covering letter that was sent on the 24 October last year. Please review this again please Thanks in anticipation of your leniency” Please review this again please Thanks in anticipation of your leniency”

Please review this again please

[15]On 24 July 2025, the Appellant submitted his appeal to the Tribunal, by completing the Notice of Appeal form, which he sent in together with a copy of HMRC’s letter of 25 June 2025, the Appeal to HMRC (which itself included a copy of the 24 October 2024 letter), and a copy of a letter from Commercial Collections Service s Ltd seeking to recover the amount of the Assessment. The Appellant stated that he did not have any representative. Under section 6 ‘Grounds for appeal’, the Appellant left box 6.1 blank (‘Give reasons for each reason you dispute’). Under box 6.2, ‘Briefly say what outcome you would like’, the Appellant wrote:

“I would like you to consider recalculating what the tax would have been if the withdrawals at 45% would have been if this was not based as income as it was my only option and I was never informed. I feel that I have paid quite enough tax at source on this and its remarkably unfair.”

[16]On 15 October 2025, the Tribunal wrote to the parties acknowledging receipt of the Notice of Appeal and assigning it to the standard category.

[17]On 5 December 2025, HMRC submitted the Application to strike out the appeal.

[18]On 21 January 2026, the FTT wrote to the Appellant with a copy of HMRC’s Application, asking him for representations in response within 14 days. No such representations were submitted by the Appellant within that time, or thereafter.

HMRC’s application

[19]HMRC’s Application to strike out all or part of the appeal is made on two bases, namely rule 8(2)(a) FTTTC Rules, that the Tribunal does not have jurisdiction, and 8(3)(c), that there is no reasonable prospect of the Appellant’s case, or part of it, succeeding.

[20]In the Application, HMRC analyse the Appellant’s Notice of Appeal as raising three grounds of appeal:(1) The Appellant was unaware withdrawals from his pension would result in a tax liability at the additional (45%) rate of income tax;

(2) The Appellant is struggling financially and does not have the money or means to pay the liability;

(3) The Respondents were negligent to take over 6 months to respond to his appeal (i.e. the statutory query of 24 October 2024) and that attempts to recover the amount due are an attempt to cover up a clerical error.

[21]HMRC contend that the Tribunal does not have jurisdiction to reduce or dismiss the Assessment on any of these grounds, on the basis that s.50 TMA 1970 only allows the Tribunal to increase or decrease an assessment in accordance with the relevant legislation establishing the liability, and that there is no jurisdiction to determine the appeal by reference to the Appellant’s lack of knowledge of that liability, his inability to pay, or alleged negligence in the time taken to respond to his query. HMRC’s contentions in the alternative, under rule 8(3)(c) FTTTC Rules are in substance the same, namely that each ground must fail because the Tribunal lacks jurisdiction to determine the appeal on that basis.

[22]Conversely, HMRC in their Application assert that the Appellant does not dispute the validity of the Assessment, or the quantum of the Assessment.

The statutory framework and jurisdiction on appeals against Simple Assessments

[23]Income tax is governed by Income Tax Acts, in particular the Income Tax Act 2007 (ITA 2007) and the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003). Part 2 of the ITA 2007 provides for the annual nature of income tax, the rates at which income tax is charged, and the calculation of income tax liability.

[24]TMA 1970 governs the making of simple assessments in respect of income tax by HMRC, and appeals in respect of the same:(1) Section 28H TMA 1970 provides for simple assessments, being an assessment of the amounts in which the person is chargeable to income tax for the year of assessment to which it relates, and an assessment of the amount payable by the person by way of income tax for that year, that is to say, the difference between the amount in which the person is assessed to income tax under paragraph (a) and the aggregate amount of any income tax deducted at source.

(2) Section 34 provides for an ordinary time limit of four years after the end of the year of assessment for an assessment to income tax to be made. Under s.34(2) an objection to the making of an assessment on the ground that the time limit has expired shall only be made on appeal.

(3) Section 31(1)(d) provides that an appeal may be brought against an assessment. This includes a simple assessment under section 28H(10), although there needs first to have been a query brought about the assessment, section 31(3A). There is no statutory time limit under s.31AA given for the time within which HMRC must give a final response to the query.

(4) Section 31A provides for a notice of an appeal to HMRC.

(5) Section 49D provides that if a notice of appeal has been given to HMRC, the appellant may notify the appeal to the Tribunal, in which case the Tribunal is to decide “the matter in question”. Section 49I specifies that the “matter in question” means the matter to which an appeal relates.

(6) Section 50 provides for the powers of the Tribunal on such an appeal. Section 50(6)(c) provides that if, on an appeal, the Tribunal decides that an appellant is overcharged by an assessment, the assessment shall be reduced accordingly, but otherwise the assessment shall stand good. Conversely, section 50(7)(c) provides that if on an appeal the tribunal decides that the appellant has been undercharged by the assessment, the assessment shall be increased accordingly.

[25]It is well established that the Tribunal’s jurisdiction derives wholly from statute. It follows therefore that the Tribunal will not have jurisdiction to reduce (in whole or in part) a simple assessment on any ground other than provided by statute. In Aspin v Estill (Inspector of Taxes)

[1987] STC 723

, the taxpayer argued that he should not be assessed to tax (which he accepted was due as a matter of law), because of advice he claimed to have received from the Inland Revenue. The Court of Appeal held that this was not a basis for challenge under a statutory appeal. Likewise, in Hok Ltd v HMRC

[2013] STC 225

, the Upper Tribunal held that the Tribunal’s jurisdiction in respect of an appeal against a penalty under section 100B TMA 1970 did not extend to being able to adjust such a penalty because of a perception it was unfair (para 36). While in other, distinct, statutory contexts it has been held that the Tribunal’s statutory jurisdiction may include the ability to consider a challenge on public law grounds (see for example section 83(1)(p) of the Value Added Tax Act 1994, KSM Henryk Zeman SP z oo v Revenue and Customs Commissioners

[2021] STC 1706

), in the present context of s.50 TMA 1970, there is no like provision. The Tribunal’s jurisdiction in respect of a simple assessment validly made in time is limited to considering whether as a matter of law, the amount assessed by HMRC in the assessment is the correct amount.

Discussion

[26]In addressing HMRC’s Application, it is first necessary to determine what the Appellant’s grounds of appeal to this Tribunal against the Assessment in fact are.

[27]That is not an entirely straightforward matter. Box6.1 of the Notice of Appeal is blank and the Appellant has also not taken the opportunity which the Tribunal gave him to provide representations in response to the Application. In these circumstances I take the substance of his appeal as being that set out in his HMRC appeal letter and the text in box

6.2 of the Notice of Appeal, as cited above. I take due account of the fact that the Appellant is a litigant in person and has not had the benefit of legal representation.

[28]Read as a whole I find that the Appellant’s case is in essence as follows:(1) He submits that he paid tax at source on each tranche of the pension income at the rate specified by the tax code provided by HMRC to St James’ SIP, i.e. 20% and at no point was he informed that he would need to pay additional tax on top of this.

(2) He cannot pay the Assessment amount and states that he will lose his house and everything that he has tried to provide for himself and his daughter after a bad marital split.

(3) He complains that it took HMRC 6 months to reply to his letter of 24 October 2024, and he had thought that meant this query (which he describes as “my initial appeal”) had been honoured.

(4) He considers that he had paid quite enough tax at source and it is remarkably unfair.

[29]Conversely, the Appellant does not allege that any of part of the pension income was not liable to tax at all; he implicitly accepts that all of it was chargeable to tax. He does not dispute the overall level of income for the tax year 2024 of £138,997. Nor does he dispute the calculation of the overall amount chargeable to tax as being £48,751.65, applying the basic rate of 20%, higher rate of 40%, and additional rate of 45% upon the appropriate portions of that income. Nor does he dispute the aggregate amount of income tax that had been deducted at source, at £27,589.20. Therefore, in my judgment the Appellant does not dispute that the quantum of the Assessment of £21,162.45 is the correct amount of outstanding income tax payable for tax year 2023-24 on the strict application of the relevant provisions of the Income Taxes Acts.

[30]In reaching this conclusion I acknowledge that in his HMRC Appeal, the Appellant refers to his paying “the correct amount of tax for each transaction” and stating “at no point was I informed that I would need to pay additional tax on top of what was correctly charged on each individual transaction”. However, in context I take these references to “correct amount” and “correctly charged” to be a repetition of his underlying point that the pension income had tax deducted at source at the basic rate of 20%, which he had understood to be the applicable rate (in the Application, HMRC accept that a Basic Rate tax code had been issued to the Appellant for the 2023/24 tax period, on the basis of the substantially lower level of income in 2022/23).

[31]It follows that the Tribunal must strike out the Appellant’s appeal under rule 8(2) because the Tribunal does not have jurisdiction in respect of any part of his case. The Appellant is not disputing that the quantum of the Assessment is correct under the Income Taxes Acts, and the Tribunal does not have jurisdiction to reduce or set aside the Assessment for any of the reasons advanced by the Appellant as summarised at paragraph 28 above.

[32]As for HMRC’s alternative contentions under rule 8(3)(c), as already noted these were to much the same effect, arguing that the Appellant had no reasonable prospects of success on any of the grounds because the Tribunal does not have jurisdiction to consider them. I also find that the Appellant has no reasonable prospects of success for that reason. However, given that if the condition in rule 8(2) met, the Tribunal has no option but to strike out the appeal, it is appropriate to determine the Application under rule 8(2) in the first instance.

[33]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: 11th MARCH 2026