Shaban Suleman v The Commissioners for HMRC [2026] UKFTT 395 (TC)

[2026] UKFTT 00395 (TC)Case No TC 09817
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on 13 February 2026Date Judgment date: 13 March 2026
By remote video hearing
Appeal reference: TC/2023/08903
REINSTATEMENT OF APPEAL - application to have a ‘struck out’ appeal reinstated - objection by HMRC - whether ‘struck out' appeal can be reinstated – no –Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009/273, Rules 8(5) and 8(6) - Application refused.
Before
TRIBUNAL JUDGE RUTHVEN GEMMELL WS
Between
SHABAN SULEMANApplicantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentAadam Zaman, of Fraser Russell Accountants (“ counsel for the Applicant/SS”) for ApplicantLiam Ellis, Litigator of HM Revenue and Customs, (“counsel for the Respondents/HMRC”) for RespondentsDECISION

Introduction

[1]With the consent of the parties, the form of the hearing was by video and attended by all participants remotely on the Teams video hearing system. The documents to which this tribunal (“the tribunal”) was referred were an application on behalf of the Appellant/Applicant Shaban Suleman (“the Applicant/SS”) dated 9 July 2025 for reinstatement of a struck out appeal, a Notice of Objection to the Reinstatement application by HMRC (“the Respondents/HMRC”), Respondents’ and Applicant’s Outlines of Arguments, a Document Bundle of 133 Pages and an Authorities Bundle of 193 pages.[2]Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely to observe the proceedings. As such, the hearing was held in public.[3]An application on behalf of the Applicant was made on 9 July 2025 to have SS’s appeal regarding assessments issued on 10 October 2020 reinstated, under Rules 8(5) and 8(6), of the Tribunal Procedure (First-Tier Tribunal) (Tax Chamber) Rules 2008 (“the Tribunal Rules”),(“ the Application”).[4]The amount of the assessments which are the subject of the appeal is, based on HMRC’s calculation, £177,710 in relation to the tax years 2004/2005 to 2019/2020 inclusive.[5]The original late appeal was submitted by Fraser Russell Limited (“the Agent”) on behalf of SS on 07 July 2023.[6]A Strike Out under Rule 8(1) of the Tribunal Rules followed the Applicant’s failure to comply with Unless Orders issued on 18 December 2024 and 07 April 2025.[7]Notification of the Strike Out was sent to SS on 04 July 2025.

WILLIAM RUTHVEN GEMMELL

[8]HMRC objected to the application and filed detailed objections on 19 August 2025.

Legislation – Tribunal Rules

[9]See Appendix A.

Authorities Referred To

[10]See Appendix B.

Evidence

[11]The Applicant, SS, chose not to attend the hearing as he was busy with other business interests. He had been given the details of how to join the hearing by the Agent. He was, accordingly, unable to give evidence and be examined and cross-examined.[12]Counsel for SS applied for a witness statement by SS, which had been prepared in relation to another subsequently vacated hearing, to be admitted. HMRC stated that little weight should be given to this as it had not been submitted as part of the papers for this hearing, the witness was not present and as he could not confirm that the statement was his.[13]I noted HMRC’s objections and qualifications but having regard to the overriding objective in Rule 2 that I deal with matters fairly and justly and in particular avoid unnecessary formality but also ensure that the parties are able to fully participate in the proceedings, I allowed the witness statement to be entered as part of the tribunal documents.[14]The witness statement was relatively brief and largely repeated what counsel for SS said on his behalf that no correspondence was received from the HM Courts and Tribunal Service/the Tribunal (“the Tribunal”) following the appeal submitted on 7 July 2023 until the Unless Order of 18 December 2024; the Agent responded within the required timeframe on 23 December 2024 on SS's behalf; subsequent correspondence from the Tribunal dated 4 July 2025 and the Agent’s reply dated 9 July 2025 showed that the appeal remained active; no formal confirmation of strike out was received from the Tribunal and SS had acted promptly and in good faith in response to every communication once received.[15]On 10 October 2022, HMRC issued assessments under section 29 of the Taxes Management Act 1970 (“TMA 1970”) for the years 2004/2005 to 2019/2020.[16]On 7 July 2023, the Applicant appealed the assessments to the Tribunal, which was designated the Tax Case reference number TC/2023/08903. The Applicant also applied for postponement of tax collection under section 55(3)(a) of the TMA 1970, which was designated the reference number TC/2023/16036.[17]On 26 July 2023, the Tribunal wrote to the Applicant requesting written authority for the Agent to act as his representative.[18]On 24 October 2023, the Respondents filed their Statement of Case in response to the Applicant’s appeal.[19]On 25 October 2023, the Tribunal wrote to the Applicant requesting written authority for the Agent to act as his representative.[20]On 27 October 2023, the Tribunal issued Directions for SS’s appeal which included the following:- “LIST OF DOCUMENTS Not later than 8 December 2023 each party shall:(1) send or deliver to the other party and the Tribunal a list of documents in its possession or control which that party intends to rely upon or produce in connection with the appeal ("documents list"); and(2) send or deliver to the other party copies of any documents on that documents list which have not already been provided to the other party and confirm to the Tribunal that they have done so. WITNESS STATEMENTS Not later than 12 January 2024 each party shall send or deliver to the other party statements from all witnesses on whose evidence they intend to rely at the hearing setting out what that evidence will be and shall notify the Tribunal that they have done so. LISTING INFORMATION Not later than 26 January 2024 both parties shall send or deliver to the Tribunal and each other a statement detailing…………………………..” Not later than 8 December 2023 each party shall: WITNESS STATEMENTS

LISTING INFORMATION

[21]On 27 October 2023, the Tribunal also wrote to the Applicant confirming that they had not received written authorisation for the Agent to represent him and, therefore, would send all correspondence to the Applicant only.[22]On 5 December 2023, the Respondents filed their List of Documents in accordance with Direction (1) which was also sent to the Agent. The Applicant failed to comply with this Direction.[23]On 10 January 2024, the Respondents filed the Witness Statement of Steven Burns, the decision-making Officer for the appeal, in compliance with Direction (2). This was sent by email to the Tribunal which stated “Further to the Tribunal’s correspondence dated 27 October 2023, please find attached the Witness Statement of the Respondents’ witness, Steven Burns. The Appellant’s representative (the Agent) has been copied into this correspondence.”The Applicant failed to comply with Direction (2).[24]On 25 January 2024, the Respondents filed their Listing Statement which was also sent to the Agent. The Applicant also failed to comply with this Direction.[25]On 8 February 2024, the Respondents filed the Document Bundle for this appeal.[26]On 30 September 2024, the Tribunal wrote to the Applicant, confirming that they had not received his List of Documents, Witness Statement or Listing Statement in accordance with the Tribunal’s Directions dated 27 October 2023.[27]The Tribunal directed the Applicant to immediately provide his List of Documents, otherwise the Tribunal “may issue a direction which may lead to the Applicant being barred from these proceedings”.[28]On 5 November 2024, the Respondents applied for an Unless Order, requiring the Applicant to confirm within seven days that he wished to continue with his appeal and provide his List of Documents, Witness Statement and Listing Information.[29]On 18 December 2024, the Tribunal issued an Unless Order, stating that the Applicant had not complied with directions issued from the Tribunal and advising that the appeal would be struck out under Rule 8(3)(c) of the Rules unless written confirmation was received from the Applicant that he intended to proceed with his appeal by 2 January 2025.[30]On 23 December 2024, the Agent wrote to the Tribunal, confirming SS’s intention to proceed with the appeal and confirmed he had not received any prior correspondence from the Tribunal in relation to the appeal since 7 July 2023. The Agent requested an extension of time to serve the List of Documents and Witness Statements and for copies of all correspondence.[31]On 12 March 2025, the Agent contacted HMRC in relation to its recent contact with the Debt Management and Banking Department of HMRC, advising that the Agent had received no correspondence from the Tribunal and no witness statements, statement of case or documents and recording that the Agent was not aware that a related but different case to the one referred to in the Application, had been struck out. The Agent stated that it would contact the Tribunal with a view to reopening the appeals.[32]HMRC’s record of this contact noted that this case, the subject of the Application, was “in the same boat and that the Agent seemed unaware of that also”. The note also stated that the Agent would contact the Tribunal to check what is happening and that it had written to the Tribunal in December 2024.[33]On 7 April 2025, the Tribunal wrote to the Agent, confirming receipt of its letter dated 23 December 2024 and requesting a completed T239 form, authorising the Agent to act for the Applicant in relation to this appeal. This is required where an agent is appointed who is not authorised to do so without such an authorisation in terms of the Legal Services Act 2007.[34]On the same day, the Tribunal wrote to the Applicant, requesting that he return a T239 form in respect of the Agent by 14 April 2025, and further requesting him to file his List of Documents and Witness Statements by 6 May 2025 or otherwise the appeal would be struck out.[35]On 27 June 2025, the Respondents contacted the Tribunal by email, requesting confirmation that the Applicant’s appeal was now struck out.[36]On 4 July 2025, the Tribunal wrote to the Applicant, confirming that the appeal has been struck out under Rule 8(1) of the Tribunal Rules. The Tribunal’s correspondence stated that the Applicant had 28 days to apply for the proceedings to be reinstated.[37]On 8 July 2025, the Respondents emailed the Applicant, confirming the status of his appeals. The email stated: - “I write in relation to your appeals to the Tribunal under TC references TC/2023/08903 and TC/2023/16036. This email is to provide you with an update on your appeals as we are not receiving responses from your agent, Fraser Russell. The Tribunal wrote to you on 4 July 2025 to confirm that your appeal under TC reference TC/2023/08903 has been automatically struck out, please see attached. The appeal was struck out as you were not complying with the Tribunal’s directions. This means that your appeal has failed and the liabilities under appeal are now payable. You have 28 days from the date of the Tribunal’s letter i.e. by 1 August 2025 to contact the Tribunal with an application for reinstatement if you wish for the appeal to be reinstated. The Tribunal also confirmed on 28 April 2025 that a video hearing is scheduled for 7 August 2025 to determine HMRC’s application to strike out the proceedings under TC reference TC/2023/16036. HMRC have applied to strike out your application to postpone payment of tax, as the appeal under TC reference TC/2023/08903 is now resolved. You should provide an outline of arguments by no later than 31 July 2025 if you want to make representations. I have copied your agent to this email.” I have copied your agent to this email.”[38]On 9 July 2025, the Applicant replied to the Tribunal confirming his grounds for the appeal of the tax assessment and applied to reinstate the proceedings.[39]On 11 July 2025, a T239 form appointing the Agent and dated 10 July 2025 was, says SS, posted to the Tribunal and the Respondents but no covering letter or any other accompanying document was sent. The Tribunal and Respondents say they did not receive the T239 at this time. There was no evidence in the document bundle that the form had been sent on this date and no evidence from SS.[40]On 31 July 2025, the Agent filed a bundle in relation to the related matter TC/2023/16036. Within the bundle was an application to reinstate the proceedings under TC/2023/08903, dated 9 July 2025 and addressed to the Tribunal.[41]On 4 August 2025, the Respondents contacted the Agent by email, confirming that the Respondents or Tribunal could not accept its application for reinstatement as it was not authorised to represent the Applicant. The email stated:- “HMRC confirm receipt of your Outline of Arguments and Document Bundle. On 26 July 2023, the Tribunal wrote to you to confirm that they could not communicate with you in relation to Mr Suleman’s appeal under TC reference TC/2023/08903 as you were not authorised. On 7 April 2025, the Tribunal again requested that your client completes the T239 form authorising you to act for him in this appeal (copy attached). As you are not authorised to act for Mr Suleman in the appeals TC/2023/08903 or TC/2023/16036, the Tribunal cannot accept your application to reinstate Mr Suleman’s appeal or your Outline of Arguments. You are also not authorised to represent Mr Suleman at the hearing on 7 August 2025, unless Mr Suleman is also attending the hearing. Your client should complete a T239 form and send this to the Tribunal if he wishes for you to act as his representative for these appeals. HMRC will be proceeding on the basis that Mr Suleman has not yet applied for reinstatement of the appeal TC/2023/08903 and will request the Tribunal strike out the application under TC/2023/16036 in the hearing on 7 August 2025.”[42]On 4 August 2025, the Agent provided the Tribunal with a signed T239 form dated 10 July 2025.[43]The Agent believed that the form T239 had been submitted by SS prior to this date.[44]On 5 August 2025, the Tribunal wrote to the parties, confirming that a hearing in relation to the Applicant’s application for postponement of tax under TC/2023/16036 had been vacated and, in effect, any payment of tax was held over until the resolution of this hearing. The Respondents were directed to provide submissions in response to the Applicant’s application to reinstate the appeal TC/2023/08903.The letter stated:
“The Tribunal acknowledges receipt of 1) HMRC’s application to vacate the hearing listed in respect of TC/2023/16036 for 7 August 2025, 2) The Appellant’s application for reinstatement of appeal reference TC/2023/08903. The applications have been considered by Judge Brown KC. The application to vacate is made because the hearing was due to consider a strike out application in appeal TC/2023/16036 which was founded on the previous strike out of the appeal reference TC/2023/08903. The Applicant has made an in-time application to reinstate the appeal TC/2023/08903 which, if determined in favour of the Appellant, will mean that HMRC’s strike out application in TC/2023/16036 is bound to fail. It is therefore in accordance with the overriding objective that the hearing be vacated, and that TC/2023/16036 is stayed pending determination of the reinstatement application on TC/2023/08903. Judge Brown therefore makes the following directions: For TC/2023/16036: 1) The hearing listed for 7 August 2025 be vacated. 2) The postponement of tax application be stayed pending the determination of the Appellant’s application to reinstate TC/2023/08903”. 1) The hearing listed for 7 August 2025 be vacated. 2) The postponement of tax application be stayed pending the determination of the Appellant’s application to reinstate TC/2023/08903”
.

Applicant’s Submissions

[45]The Respondents rely on Chappell v Pensions Regulator [2019] UKUT 209 (TCC) and the Applicant submits that the tribunal must apply a proper balancing exercise in accordance with that authority and adopt the structured three-stage approach confirmed by the Upper Tribunal in Martland v HMRC [2018] UKUT 178 (TCC) (“Martland”), adopting the approach of the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906 (“Denton”).[46]Accordingly, the tribunal must consider:(a) The seriousness and significance of the breach;(b) The reasons why the breach occurred; and(c) All the circumstances of the case, so as to deal justly with the application.[47]This exercise is a balancing one and the merits of the substantive tax appeal are not determinative at this stage.[48]In Data Select Ltd v HMRC [2012] UKUT 187 (TCC) (“Data Select”), the Upper Tribunal confirmed that relevant considerations include the purpose of the time limit, the explanation for default, and the consequences of granting or refusing relief.[49]The authorities relied upon by the Respondents, including Chappell v Pensions Regulator [2019] UKUT 209 (TCC) (“Chappell”), do not establish a different or stricter test and preserve the Tribunal’s discretion.

Stage One – Seriousness And Significance

[50]The Applicant accepts that there has been non-compliance with Tribunal’s directions but the non-compliance did not arise from deliberate or reckless disregard of Tribunal orders.[51]The non-compliance arose because Tribunal correspondence, including directions, was not received by the Applicant or the Agent.[52]The Unless Order dated 18 December 2024 was the first correspondence the Applicant or the Agent received in almost a year and a half since the appeal was first submitted to the Tribunal on 7 July 2023.[53]This non-receipt was not due to inaction by the Applicant. The Agent lodged SS’s appeal and reasonably understood it was “on the record”. From 7 July 2023 until the Unless Order of 18 December 2024, the Tribunal's administrative process did not engage with the Agent, and no correspondence was received by either the Applicant or the Agent. This created a legitimate and reasonable belief that the matter was proceeding through standard administrative channels and explains the lack of proactive enquiry during this period.[54]The Agent believed that SS had lodged the form T239 with the Tribunal at some time after 7 July 2023.[55]The Applicant complied with the Unless Order of 18 December 2024 and confirmed his intention to proceed on 23 December 2024, before the 2 January 2025 deadline, and has promptly complied with all future correspondence since then.[56]The Applicant has acted in good faith throughout, responding promptly to all correspondence once received since, and took steps to regularise matters.[57]In those circumstances, the breaches are properly characterised as procedural and contextual, stemming from an administrative gap. They, therefore, lack the necessary element of culpability—such as deliberate flouting or reckless disregard—required for a breach to be 'serious and significant' within the meaning of the Denton/Martland framework.

Distinguishing the Respondent's Authorities

[58]The authorities relied upon by the Respondent are distinguishable on their critical facts.[59]In HMRC v Michael Breen [2023] UKUT 00252 (“Breen”), the Upper Tribunal was confronted with a 'long history of non-compliance' where the appellant had repeatedly failed to comply despite clear receipt of orders. The present case is fundamentally different: the Applicant had no awareness of the procedural timetable due to non-receipt and demonstrated immediate compliance upon notification.[60]In that case there were also two orders, at [41] that not been responded to and the Applicant says that in this case, whereas there were two Unless Orders, he responded to one but not the other because he had not received it. The Applicant’s behaviour was not, therefore, deliberately failing to comply on clearly received orders.[61]In British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] 1WLR 4530 (“Oak Cash & Carry”), the Court of Appeal’s reasoning on the seriousness of breaching an Unless Order presupposes that the party was properly served and aware of its obligations. Here, the central issue is the initial lack of effective communication from the Tribunal to the Applicant’s duly appointed representative, which negates the element of culpable disregard central to that authority.[62]As the Applicant responded to the December 2024 strike out order and did not receive the subsequent one, this did not amount to a serious breach.

Stage Two – Reasons For The Breaches

[63]The breaches alleged were not deliberate and arose from administrative and communication breakdown in the formal line of communication between the Tribunal and the Agent.[64]For a substantial period, the Tribunal did not recognise the Agent as authorised so that correspondence was sent only to the Applicant.[65]The Applicant reasonably believed that the Agent was dealing with the appeal.[66]Receipt of correspondence from the Respondent to the Agent is not equivalent to receipt of Tribunal directions, which are the only documents that impose binding procedural obligations.[67]The Applicant and his Agent were not in receipt of any Tribunal directions prior to the Unless Order of 18 December 2024. In the absence of directions, the Applicant was unable to know what steps were required.[68]The Applicant did not receive any correspondence from the Tribunal until the Unless Order, of 18 December 2024 as the formal channel of communication to the Agent had not been established by the Tribunal's administrative process.[69]The Applicant promptly supplied the Unless Order of 18 December 2024 to his Agent who responded within time. This demonstrates active engagement, not disregard.[70]The authority of HMRC v Katib [2019] UKUT 189 (“Katib”) is distinguishable. The principle that an agent's failure is the litigant's, presupposes that the agent is in the communication loop. Here, the Tribunal’s process excluded the Agent. The failure is attributable to the situation, not the person.[71]These are not deliberate or sustained breaches, but procedural difficulties caused by miscommunication and administrative error.[72]Even if the Agent’s failures are considered, the overriding objective requires fairness where the Tribunal’s own procedures contributed to the difficulty. Stage Three – All The Circumstances Fair Trial

Stage Three – All The Circumstances

[73]A fair hearing remains entirely achievable and no trial date has been lost.[74]The Respondent is able to re-serve or rely upon its existing evidence, the Applicant is now in a position to file documents and comply with directions, and the Tribunal can issue fresh directions for the orderly progression of the appeal. No prejudice has been identified that cannot be remedied by directions.[75]The inclusion of Tribunal correspondence within the bundle does not constitute acceptance that such correspondence was received at the time it was issued.[76]Furthermore, reinstatement would not undermine the efficient administration of justice or the Tribunal's authority. The Applicant is now fully compliant, has regularised his representation, and stands ready to adhere to a strict procedural timetable. The Tribunal's resources invested to date are minimal, and a fair hearing on the substantive dispute can be conducted promptly without disruption to the Tribunal's wider caseload.

Prejudice and Balancing Exercise

[77]Refusal of reinstatement would finally determine the Applicant’s statutory right of appeal in respect of assessments covering approximately fifteen years.[78]That prejudice would be severe and irreversible and that consequence would be wholly disproportionate when compared with the limited administrative inconvenience to the Respondents of proceeding with the appeal.[79]The prejudice relied upon is the permanent loss of a statutory right of appeal, which is a procedural prejudice rather than a financial one.

Proportionality and Overriding Objective

[80]The overriding objective requires the Tribunal to deal with cases fairly and justly. By contrast, reinstatement would allow the substantive tax dispute to be heard and determined, ensuring that justice is done between the parties and represents a proportionate and just case management response.[81]Any historic procedural failings can be addressed by the issue of fresh directions and timetables.[82]In Martland, the Upper Tribunal confirmed that reinstatement requires a balancing exercise, including consideration of prejudice to each party.[83]In Data Select, the Upper Tribunal confirmed that fairness requires the Tribunal to weigh the explanation for default and the prejudice arising from granting or refusing relief.[84]Applying those principles to the present case, the balance plainly favours reinstatement.

Conclusion

[85]A fair trial remains entirely achievable. The alleged breaches arose from procedural miscommunication and administrative difficulty, not deliberate disregard.[86]The Applicant acted in good faith and within time where correspondence was received.[87]The Tribunal itself continued corresponding with the Applicant, indicating that the appeal was being treated as live.[88]The prejudice to the Applicant (loss of statutory right of appeal over 15 years of assessments) outweighs inconvenience to the Respondent.[89]Denying reinstatement would deprive the Applicant of his statutory right to challenge those assessments before an independent tribunal. The prejudice to the Applicant would therefore be severe and irreparable.[90]Accordingly, the Applicant respectfully seeks: (a). Reinstatement of appeal TC/2023/08903; (b). The issue of fresh directions for the conduct of the appeal; and (c). Consequential progression of appeal TC/2023/16036.

Respondents’ Submissions

[91]The testset out in Chappell at [99] is a modified version of the three-stage test set out in Martland.[92]The Respondents submit: The breaches of the Unless Orders were serious and significant The Applicant has not provided a good reason for the breaches The circumstances of the case demonstrate that the Application should be refused.

Was the breach serious and significant?

[93]The Applicant failed to comply with six Tribunal directions, including two Unless Orders.[94]The Applicant failed to comply with the Unless Order dated 18 December 2024 despite his assertion that he confirmed that he intended to proceed with the appeal on 23 December 2024. The confirmation was sent by the Agent, who was not authorised to act for the Applicant.[95]The Applicant was previously informed three times of the requirement to authorise his agent on 26 July 2023, 25 October 2023 and 27 October 2023. The Agent was told by the Tribunal on 23 July 2023 that it was not authorised as an agent.[96]The Tribunal did not accept the Agent’s letter dated 23 December 2024 as compliance with the Unless Order, and they subsequently issued a further Unless Order on 7 April 2025. The latter gave the Applicant another chance to comply with the Tribunal’s directions, however he continued his behaviour of non-compliance.[97]The Agent’s letter of 23 December 2024 requested an extension of time to provide a list of documents until 2 March 2025 but the Agents did not go on to comply with that time limit.[98]The Respondents submit that the Applicant’s breaches are particularly significant.[99]The Respondents rely on Breen in which the UT at [136] confirmed:
“At stages 1 and 2 of Martland, taking into account the full extent of non-compliance, Mr Breen’s conduct of his appeal has demonstrated a long history of non-compliance. There can be no doubt that the non-compliance was both serious and significant. There were two unless orders with which he had failed to comply and a long history of previous non- compliance with the Tribunal’s requirements and requests.”
[100]The Respondents say that the tribunal requires to take account of the Applicant’s non-compliance from 2017 to 2021.[101]Furthermore, inOak Cash & Carry , the court found at [41]:
“the very fact that X has failed to comply with an unless order (as opposed to an ‘ordinary’ order’) is undoubtedly a pointer towards seriousness and significance. This is for two reasons. First, X is in breach of two successive obligations to do the same thing. Secondly, the court has underlined the importance of doing that thing by specifying an automatic sanction in default (in this case the draconian sanction of strike out).”
[102]The Applicant in this case has, more seriously and significantly, failed to comply with two Unless Orders and four other obligations and has a history of non-compliance. In addition, in relation to this appeal there has been no progress since 2023, during which time there has been a use of the time and resources of the Respondents and the Tribunal in attempting to progress the appeal, which has been frustrated by the Applicant.[103]The Respondents submit that the Applicant’s non-compliance is not a trivial breach and must be regarded as serious and significant.

The reasons for the breaches

[104]The Applicant’s reasons for the breaches appear to be: No directions were ever received by the Applicant to comply with. The breaches were not deliberate as they arose from communication difficulties. The Tribunal did not accept the Agent’s authority until July 2025.[105]The Applicant argues that the Unless Order dated 18 December 2024 was the first correspondence received by either the Applicant or his Agent since he first submitted the Appeal on 7 July 2023.[106]The Tribunal’s correspondence following the date of appeal was all addressed to the Applicant’s address on their notice of appeal and which is understood to be their current address. There is no indication from the Tribunal that this correspondence was returned undelivered.[107]The Applicant has also confirmed that he received the Tribunal’s correspondence dated 18 December 2024 and the letter dated 4 July 2025, all of which were addressed to the same address, but had received no correspondence since July 2023 and no correspondence between December 2024 and July 2025.[108]On the balance of probabilities, the Applicant was sent and received the Tribunal’s correspondence dated 27 October 2023, 30 September 2024, 18 December 2024 and 7 April 2025, and the latter was also sent to the Agent. It is not feasible to suggest that none of this correspondence was received by the Applicant.[109]Furthermore, the Agent was made aware of the Tribunal’s directions despite not being authorised, as they were referred to in the Respondents’ correspondence, between 5 December 2023 and 25 January 2024, when complying with the Tribunal’s directions. Despite the specific directions not being provided to the Agent, it was clear from the Respondents’ correspondence to the Agent that directions had been issued.[110]The Agent had numerous opportunities to ask for clarification from the Respondents and Tribunal on the current status of the appeal. Instead, the Agent did not take any action until 23 December 2024, which was one year, five months and two weeks after they filed the Applicant’s Notice of Appeal. That is a wholly unreasonable approach to the appeal by the Agent.[111]The Respondents submit that any “communication difficulties” described by the Applicant are minimal, as the Applicant and his Agent were made aware of the Tribunal directions. Communication difficulties were caused by the Applicant and were ‘self-inflicted’ , as he did not send the required authorisation for the Agent despite being advised to do so numerous times.[112]The Agent was sent copies of the letter to the Tribunal, evidencing that the Respondents were complying with the Tribunal directions of 27 October 2023, on 5 December 2023 and 10 and 25 January 2024. It was clear, therefore, to the Agent that the Applicant was directed to do something but nothing was done until December 2024.[113]The Agent was aware, as a consequence of these emails, of the Tribunal’s direction of 27 October 2023 but they did not contact the Applicant, the Tribunal or the Respondents to make any further enquiries.[114]The Respondents accept that the Agent says it contacted the Applicant in relation to earlier correspondence but the Agent has provided no evidence of this.[115]The Tribunal were unable to accept the Agent’s authority until 04 August 2025 when it received a signed T239 form authorising the Agent.[116]In summary, the Respondents’ submission is that both the Applicant and the Agent were sufficiently aware of the Tribunal’s directions but they failed to comply or take any action. The Applicant has, therefore, not provided a good reason for the breaches.[117]To the extent that any failing of the Agent to engage with the Tribunal process is relied on by the Applicant as a reason for the breaches, the Respondents submit that the Tribunal is bound by the Upper Tribunal decision of Katib at [49] where the UT stated:
“We accept HMRC’s general point that, in most cases, when the FTT is considering an application for permission to make a late appeal, failings by a litigant’s advisers should be regarded as failing of the litigant.”
[118]Whilst Katib relates to applications for permission to make late appeals, the Respondents submit that the reasoning that failures of an adviser being treated as the failing of the litigant apply equally to applications for reinstatement. This was also confirmed in the FTT decision of Subway London Ltd v HMRC [2019] UKFTT 579 (TC) (“Subway”) at [81].[119]Therefore, to the extent that the Agent’s failings to engage with the Tribunal process are the reasons for the breaches, the Applicant cannot rely on them as good reasons.

Evaluation of the circumstances of the case

[120]The third stage of the test requires an evaluation of all of the circumstances of the case. This requires the tribunal to conduct a balancing exercise which weighs up the merit(s) of the reasons for the delay and the prejudice which would be caused to both parties by granting or refusing reinstatement.[121]As confirmed by the UT in Chapell, the tribunal should give particular importance to the need for litigation to be conducted efficiently and at proportionate cost and to enforce compliance with rules, practice directions and orders.[122]Those factors must be decided in the Respondents’ favour as this appeal was submitted on 7 July 2023. The Applicant has not complied with any directions to allow litigation to be conducted efficiently, and reinstatement would cause further costs to the Respondents.[123]It is consistent with the case law, on the importance of time limits to be respected and enforcement of compliance with directions, that the Application is not permitted.[124]Furthermore, the Respondents would be prejudiced by reinstatement as they would have to divert resources to an appeal which they were entitled to believe was concluded. Reinstatement would take the Respondents back to the position of filing a new witness statement, as their current witness has retired, and re-issue listing information and an amended Document Bundle which includes the Applicant’s documents.[125]The Respondents accept that the Applicant would be prejudiced in not allowing reinstatement of the appeal as they would not be given the opportunity to present their arguments at a hearing. The Applicant previously had this opportunity but failed to follow the Tribunal’s directions to allow a Tribunal to deal with this case fairly and justly in accordance with the overriding objective at Rule 2 of the Tribunal Rules.[126]Furthermore, the potential financial consequences of refusing the Application are not a relevant consideration according to the UT in Katib at [60].[127]The tribunal should also not consider the merits of the Applicant’s case, as confirmed at [86] of Chappell and [138] of Breen.[128]The prejudice to the Applicant in not allowing reinstatement is outweighed by the prejudice which would be caused to the Respondents were the appeal to be reinstated which is not minimal or a minor inconvenience and also in terms of cost and the importance of efficient litigation in compliance with rules and orders. The prejudice to the Applicant is further outweighed by the fact that the breaches were serious and significant and no good reason has been provided for the breaches.

Conclusion

[129]For the reasons provided, the Respondents submit: The Applicant’s breaches were serious and significant, No good reason for the breaches has been provided, and The circumstances of the case demonstrate that the tribunal should not exercise its discretion by allowing the Application.[130]The Respondents request the tribunal to dismiss the Application.

Tribunal Analysis and Decision

[131]Central to the Application is the credibility that no Tribunal correspondence or directions were received between the date of lodging the appeal on 07 July 2023 and 18 December 2024 and then between 23 December 2024 and 04 July 2025 by the Applicant and/or the Agent.[132]The Applicant chose not to attend the hearing and give evidence and could not confirm nor be cross-examined on the Witness Statement which the tribunal allowed to be admitted to the hearing.[133]The correspondence and directions were issued by the Tribunal and I agree with the Respondents’ submissions that these documents had been sent to the Applicant, as they were all sent to the address shown in the Notice of Appeal and there was no evidence that the Tribunal had any of their letters returned. In addition, later correspondence was sent by email to the Agent and to the Applicant.[134]Having considered the evidence, I was not persuaded that only some of this correspondence had been received and not others and in any event correspondence was sent by the Respondents to the Agent, referring to the Tribunal Direction of 27 October 2023 on 05 December 2023 and 10 and 25 January 2024 so it was aware of it.[135]No subsequent enquiry was made by the Agent to its client, the Applicant, to the Respondents or to the Tribunal of a case they considered was in the Tribunal’s “administrative processes” or about Directions, related to the appeal they had lodged, which they claim, at that time, to have no knowledge. I do not consider that this is a credible response from a professional adviser.[136]Included in this series of correspondence was the Respondents email of 25 January 2024 enclosing their hearing listing statement which puts beyond doubt that the Tribunal had issued directions of 27 October 2023. This had requested each party to submit documents and information relevant to the hearing and if the Agent did not consider that these were applicable to the Applicant, it is reasonable to believe they should have questioned why they were relevant.[137]Furthermore, the appeal had been lodged on behalf of the Applicant on 7 July 2023 but the Agent and the Applicant say the first they were aware of its future progress was on 18 December 2024.[138]The Agent is a professional firm of accountants who say it considered it was “on the record” and that the matter was “proceeding through standard administrative channels”, which was the reason why it and the Applicant did not make any proactive enquiry during this period of one year and five months.On the balance of probabilities this does not seem credible.[139]The Agent says that it assumed the Applicant was dealing with the appeal and the Applicant says he thought the Agent was dealing with the matter but neither made enquiries of the other.[140]The Agent should have been aware that without a form T239 it was unable to progress the appeal it had lodged on 7 July 2023. It does not seem credible that no enquiry was made by the Agent to the Applicant and vice versa during such an extended time, especially given that the disputed assessments covered a substantial amount.[141]Accordingly, I consider that the Applicant did receive the correspondence and that the Agent received the correspondence from the Respondents confirming their adherence to the Tribunal directions and consequently were or should have been aware of the existence of the Tribunal directions of 27 October 2023.[142]The Applicant had been reminded on 26 July 2023, 25 October 2023, 27 October 2023 and 7 April 2024 in relation to the lack of authorisation for the Agent to represent him and receive correspondence. The Agent was advised on 4 August 2025 that the Tribunal could not accept an application for reinstatement as it was not authorised to represent the Applicant.[143]I consider that it was only when the Applicant was advised that his appeal would be struck out on 18 December 2024 that he sought to respond to the Tribunal. The Agent then requested an extension of time to March 2025 and confirmed the Applicant’s intention to proceed with the appeal. The Agent then did nothing further in respect of this request until 08 July 2025.[144]The Agent had contacted HMRC on 12 March 2025 primarily in relation to the issue of payment of the tax liability following the issuance of the Unless Order of 18 December 2024 which had not been complied with. HMRC noted that the Agent seemed unaware that both appeals had been struck out.[145]The Applicant had failed to comply with the Tribunal’s direction of 27 October 2023 and its ‘reminders’ of this on 30 September 2024, 7 April 2025 and 4 July 2025.[146]To the extent that any of the failures to comply with six Tribunal directions, including two Unless Orders, was attributable to the Agent, I agree with the Respondents’ submission that I am bound by the Upper Tribunal decision in Katib and that the general rule is that failings by a litigant’s advisers should be regarded as a failing of the litigant and is applicable to reinstatement applications.[147]Furthermore, as set out in Subway at [64] the failure of an adviser to advise taxpayers of deadlines for making appeals, and in this case complying with directions, is unlikely to amount to a “good reason” for missing those deadlines when considering the second stage of the evaluation required by Martland as modified by Chappell.[148]Given my finding that the Applicant received the communications relating to the Tribunal’s directions of 27 October 2023, these had not been complied with and even if the Applicant believed the Agent was dealing with the matter, a reasonable taxpayer would have made further enquiry on being told by the Tribunal that the Agent was not authorised to represent him as it needed a form T239 to allow this.[149]As the Applicant chose not to give evidence, it was not possible to ascertain the extent to which he relied upon the Agent.

Determining the seriousness and significance of the failure

[150]The Applicant failed to comply with two Unless Orders and four other obligations and has a history of non-compliance. In addition, there has been no progress of the appeal since 2023 during which time there has been a use of the time and resources of the Tribunal in attempting to progress the appeal, which has been frustrated by the Applicant.[151]I find that the Applicant’s non-compliance is not a trivial breach and was due to inaction by the Applicant and the Agent. I do not accept that there was a ‘reasonable belief’ that the matter was progressing through ‘standard administrative channels’ to explain the lack of proactive enquiry before and after 18 December 2024.[152]As I do not accept that the Applicant received no correspondence and consider that the Agent was or should have been aware of the Tribunal directions following the correspondence they received from HMRC and then made no enquiry on either the progress of the appeal or that notification, I consider that a delay of one year, five months and two weeks was both serious and significant.[153]I also do not accept that the Tribunal’s administrative processes did not engage with the Applicant as it sent correspondence to the address provided by the Applicant, none of which was returned, nor with the Agent because the Tribunal explained that it was not able to correspond with the Agent, on 27 October 2023, and subsequently, as it had no written authorisation to do so.[154]The Applicant and/or the Agent should have been aware that a form T239 was required to have been submitted and should have notified or cross checked with the other whether it had been lodged with the Tribunal.[155]Whereas the Agent responded timeously to the Tribunal’s Unless Order of 18 December 2024, it did nothing to further its request for an extension, despite being advised on 12 March 2025 that the appeal had been struck out.[156]On 7 April 2025, the Tribunal advised the Agent that a form T239 was required. There was insufficient evidence that this had been sent to the Tribunal, and the Respondents, on 11 July 2025.[157]The Tribunal provided a second opportunity for the Applicant to avoid the appeal being struck out on 04 July 2025 giving 28 days in which to apply for reinstatement, but the Agent’s response on 08 July 2025 could not be considered by the Tribunal as the form T239 had not been received at that date and was not subsequently received until 04 August 2025 by which time the 28 days to apply for reinstatement on 01 August 2025 had expired.[158]The breaches were both serious and significant.

The reason (or reasons) why the breach(es) occurred

[159]I do not accept, for the reasons stated, that no directions were received by the Applicant with which to comply. I also do not accept that the breaches were not deliberate arising from communication difficulties.[160]To the extent that communication difficulties arose, I consider that these were in large part because the Applicant ignored numerous requests to submit a form T239 and that the Agent should not have considered the Applicant had done so without confirming this from him and/or confirming this with the Tribunal.[161]As the Applicant had been sent numerous reminders of the need for this authorisation, I do not consider that it was reasonable for him to believe that the Agent was dealing with the appeal.[162]In addition there was insufficient evidence that the T239 dated 10 July 2025 had been sent on 11 July but there was evidence that it had been received on 4 August 2025 which was too late, for the Agent’s response to the 4 July 2025 offer to apply for the proceedings to be reinstated, to be in time.[163]I consider that in terms of the Legal Services Act 2007, the Tribunal was obliged and required to obtain a form T239, or similar authority, in order to accept an application on behalf of the Applicant to reinstate his appeal, make Outline Arguments, or represent him at a hearing.[164]I do not accept that the authority of Katib can be distinguished in that it presupposes the agent is in the communication loop as I consider that the Agent was in the communication loop, by virtue of their correspondence from the Respondents complying with the Tribunal directions, which required the parties to communicate with each other.[165]Accordingly, I do not accept that the breaches were caused by procedural difficulties caused by miscommunication and administrative error of the Tribunal but were instead deliberate and sustained breaches by the Applicant and the Agent.[166]The reasons put forward by the Applicant were not good reasons and considerable communication difficulties, on the evidence before me, were between the Applicant and the Agent.

Evaluation of "all the circumstances of the case"

[167]In balancing the merits of the reasons given for the breaches of six Tribunal orders and the prejudice which would be caused to both parties by granting or refusing permission, I find that the reasons for the serious and significant breaches have no merit but accept that the prejudice to the Applicant is significant given the amounts appealed.[168]I consider that statutory time limits should be respected and litigation should be conducted efficiently and at proportionate cost and that there is a particular importance of complying with statutory time limits. Neither has been evident from the Applicant’s conduct.[169]Time limits are essential in relation to a functioning system for the administration of justice and, accordingly, in evaluating all the circumstances of the case it is necessary to take compliance and non-compliance with them into account.[170]In any decision in relation to whether or not a case proceeds there is likely to be prejudice to one or other of the parties.[171]In relation to the Respondents, they say that they rely on time limits and the finality of litigation to allocate their resources and if the appeal is reinstated then they will have to devote resources to re-examine matters that they had long considered closed, in a situation where the Applicant had not availed himself for a period of nearly 16 months to progress his case.[172]The Respondents’ Statement of Case is almost 16 months old and the witness statement from the officer concerned with the assessments which were appealed has now retired so that this matter may have to be reinvestigated by another officer.[173]In relation to the Applicant, the potential prejudice is that he may not have the opportunity to dispute the assessments but this has been down to his own inactions and the breaches have been self-inflicted.[174]I need to take account of the public interest in the finality of litigation and the interests of both the Respondents and the Applicant. Compliance with time limits is expected and the Applicant has provided no good reason or reasons why he did not comply.[175]The Applicant states that he has complied with the Tribunal directions and orders since 18 December 2024 but the facts are that there was still no authorisation form T239, and no confirmation between the parties that this had been lodged nor a request for its acknowledgement by the Tribunal, with the consequence that the Agent’s response to the Tribunal’s letter of 04 July 2025, being a second opportunity for reinstatement, could not be considered.[176]The Agent’s response to the Tribunal on 23 December 2024, requesting an extension of time to March 2025 at a time when the Agent was in contact with HMRC albeit primarily in relation to another appeal for the Applicant, was taken no further.[177]I consider that re-instatement should not be granted unless I am satisfied on balance that it should be.[178]As regards all the circumstances, I find that they are not such as to persuade me to grant the Application, having evaluated them, which involves balancing the merits of the reasons given for the delay, and any prejudice in granting or refusing the application, taking into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, for statutory time limits to be respected and to enforce compliance with the Rules, practice directions and orders.[179]I find that the breaches are serious and significant and that no good reasons for them have been given. On the balance of probabilities, I consider that the Applicant received all the communications from the Tribunal which clearly showed the time limits which applied and the need to authorise the Agent on his behalf to represent him.[180]The administration of justice requires statutory time limits to be respected in order for it to be workable and the Applicant was given numerous opportunities to progress his appeal including two chances to have his appeal reinstated but he failed to take them by his own actions or those of the Agent.[181]Whereas there is prejudice to the Applicant in not being able to pursue his case, there is equally prejudice to the Respondents in the allocation of their resources and to the public interest.[182]In balancing the prejudice between the parties, I consider this to be greater for the Respondents if the application is allowed. Disposal For the reasons stated, the Application is refused. Right to apply for permission to appeal

Disposal

[183]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. WILLIAM RUTHVEN GEMMELL TRIBUNAL JUDGE Release date: 13 March 2026 APPENDICES Appendix A Legislation – Tribunal Rules Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009/273, Rule 8. Striking out a party's case 8. —(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with the direction would lead to the striking out of the proceedings or that part of them. (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. (3) The Tribunal may strike out the whole or a part of the proceedings if— (a)the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them; (b)the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or (c)the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding. (4) 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. (5). If the proceedings, or part of them, have been struck out under paragraphs (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated. (6). An application under paragraph (5) must be made in writing and received by the Tribunal within 28 days after the date that the Tribunal sent notification of the striking out to the appellant. Appendix B Authorities Referred To Data Select Ltd v HMRC [2012] UKUT 187 (TCC) Denton v TH White Ltd [2014] EWCA Civ 906 British Gas Trading v Oak Cash & Carry Ltd [2016] 1 WLR 4530 Martland v Revenue and Customs Commissioners [2018] UKUT 178 (TCC). HMRC v Hafeez Katib [2019] 0189 UKUT (TCC) Dominic Chappell v The Pensions Regulator [2019] UKUT 0209 Subway London Ltd v HMRC [2019] UKFTT 579 (TC) HMRC v Michael Breen [2023] UKUT 00252