Join Her Ltd v The Commissioners for HMRC [2026] UKFTT 724 (TC)

[2026] UKFTT 00724 (TC)Case No TC 09888
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 8 May 2026Date Judgment date: 15 May 2026
By remote video hearing
Appeal reference: TC/2025/03925
Keywords – withdrawal of underlying decisions and assessments during hearing – application to strike-out the appeals under rule 8(2)(a) Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 – whether tribunal retained jurisdiction over the proceedings – no – application granted
Before
TRIBUNAL JUDGE STAPENHURST
Between
JOIN HER LTDAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentMichael Feng of Feng & Co representing the Appellant for AppellantClaire Verhoeven, litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]This decision relates to an appeal by the Appellant, Join Her Ltd (“JHL”), against a decision of the Respondents, His Majesty’s Revenue and Customs (“HMRC”) dated 9 October 2025, to reduce JHL’s input tax credit for the periods 05/2025 and 06/2025 to nil. This appeal was made under s. 83(1)(c) of the Value Added Tax Act 1994 (“VATA”).[2]The appeal concerned input VAT on purchases by JHL. The underlying reason for the denial of input tax credit in HMRC’s decision dated 9 October 2025 was that JHL’s agent allegedly refused to provide information requested by HMRC relating to JHL’s business, only providing what they believed was sufficient.[3]On 12 January 2026, HMRC withdrew their decision dated 9 October 2025 and applied to the Tribunal for the Appellant’s appeal to be struck out under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (the “FTT Rules”). HMRC submitted that the effect of the withdrawal of the relevant decision was that the Tribunal had no jurisdiction to determine the appeal and therefore the appeal must be struck out.[4]The Tribunal struck out the appeal on 23 January 2026 and on 23 and 25 January 2026, the Appellant applied for reinstatement. This decision deals with that reinstatement application.

background

[5]HMRC issued a decision, dated 9 October 2025, reducing JHL’s input tax credit for the periods 05/2025 and 06/2025 to nil. The decision notice stated:
“Your agent has stated in multiple[sic] emails that you will not be completing the VAT Questionnaire, and your agent has stated during your call on the 30/09/2025, that they wished for a decision to be made, and consented to the claim being reduce to nil. Because your agent has refused to comply with our requests for information, we will be reducing the VAT periods 05/2025 and 06/2025 to nil.”
[6]The Appellant appealed this decision on 8 October 2025. HMRC have explained that the decision dated 9 October 2025 was in fact sent to the Appellant on 8 October 2025. Therefore the Appellant’s appeal was validly made.[7]On 12 January 2026, HMRC notified the Appellant and the Tribunal that the decision of 9 October 2025 had been withdrawn. The letter stated:
“It has been agreed between the HMRC Legal team, and the original decision maker to withdraw the decision made on the above case reference, made on the 9th October 2025, for the VAT periods ending 05/2025 and 06/2025. The case will be pass back [sic] to the original decision maker to reexamine the case and the evidence and will reconsider the decision.”
[8]The Tribunal notified the Appellant and HMRC on 23 January 2026 that the appeal had been struck out for want of jurisdiction.[9]On 23 and 26 January 2026, the Appellant applied for reinstatement of the appeal against the 9 October 2025 decision.[10]HMRC’s original decision was replaced by a new decision, which was notified to the Appellant on 18 February 2026. The new decision reinstated repayment positions for the VAT periods 05/2025 and 06/2025 in the sums of £21,607.71 and £2,267.50 respectively, reflecting input tax allowable to the Appellant in those amounts.[11]In the letter dated 18 February 2026, Officer Day confirmed to the Appellant that their VAT repayment claims in the amounts of £12,763.29 and £23,768.48 for the periods 05/2025 and 06/2025 were refused.[12]The letter dated 18 February 2026 also provided the Appellant with new appeal rights following the new decision.[13]On 25 February 2026, HMRC filed an objection to the Appellant’s application for reinstatement.

legislation

[14]Section 83 VATA sets out the matters in relation to which a person can appeal to the Tribunal. So far as relevant, it provides as follows: Appeals(1) Subject to sections 83G and 84, an appeal shall lie to the tribunal with respect to any of the following matters— … (b) the VAT chargeable on the supply of any goods or services or, subject to section 84(9), on the importation of goods; (c) the amount of any input tax which may be credited to a person; … (p) an assessment— (i) under section 73(1) or(2) in respect of a period for which the appellant has made a return under this Act; or (ii) under subsections (7), (7A) or (7B) of that section; or the amount of such an assessment; … (2) In the following provisions of this Part, a reference to a decision with respect to which an appeal under this section lies, or has been made, includes any matter listed in subsection (1) whether or not described there as a decision.[15]Regulation 29 of the Value Added Tax Regulations 1995 (SI 1995/2518) (the “VAT Regulations 1995”) confers on HMRC a discretionary power to allow claims for input tax to be supported by alternative evidence, in circumstances where the prescribed VAT documentation is not available. So far as material, it provides as follows: Claims for input tax 29. —(1) Subject to paragraph (2) below, and save as the Commissioners may otherwise allow or direct either generally or specially, a person claiming deduction of input tax under section 25(2) of the Act shall do so on a return made by him for the prescribed accounting period in which the VAT became chargeable.(2) At the time of claiming deduction of input tax in accordance with paragraph (1) above, a person shall, if the claim is in respect of— (a) a supply from another taxable person, hold the document which is required to be provided under regulation 13; (b) a supply under section 8(1) of the Act, hold the relative invoice from the supplier; (c) an importation of goods, hold a document authenticated or issued by the proper officer, showing the claimant as importer, consignee or owner and showing the amount of VAT charged on the goods; (d) goods which have been removed from warehouse, hold a document authenticated or issued by the proper officer showing the claimant’s particulars and the amount of VAT charged on the goods; (e) an acquisition by him from another member State of any goods other than a new means of transport, hold a document required by the authority in that other member State to be issued showing his registration number including the prefix “GB”, the registration number of the supplier including the alphabetical code of the member State in which the supplier is registered, the consideration for the supply exclusive of VAT, the date of issue of the document and description sufficient to identify the goods supplied; or (f) an acquisition by him from another member State of a new means of transport, hold a document required by the authority in that other member State to be issued showing his registration number including the prefix “GB”, the registration number of the supplier including the alphabetical code of the member State in which the supplier is registered, the consideration for the supply exclusive of VAT, the date of issue of the document and description sufficient to identify the acquisition as a new means of transport as specified in section 95 of the Act; provided that where the Commissioners so direct, either generally or in relation to particular cases or classes of cases, a claimant shall hold, instead of the document or invoice (as the case may require) specified in sub-paragraph (a), (b), (c), (d), (e) or (f) above, such other documentary evidence of the charge to VAT as the Commissioners may direct.[16]Rule 8 of the FTT Rules deals with circumstances in which the Tribunal may, or must, strike out a party’s case. Rule 8(2)(a) FTT Rules provides as follows: 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. Submissions Submissions by JHL

Submissions

[17]I have summarised my understanding of the Appellant’s written submissions below.(1) The Appellant argues that HMRC’s application to strike out the appeal under rule 8(2)(a) of the FTT Rules is misconceived and should be refused.(2) First, the Appellant contends that HMRC’s position lacks merit in light of the extensive evidence already provided, including bank statements, audit trails, and VAT invoices for May and June 2025. The Appellant maintains that all relevant material was before HMRC when the original decision was made under s. 25(3) VATA 1994, giving rise to a valid right of appeal and the Tribunal’s jurisdiction.(3) The Appellant questions HMRC’s justification for “re-examining” the case, submitting that there is nothing further to review given that full documentation was previously supplied. The Appellant distinguishes this from cases where only sample evidence was provided, in which case reconsideration might be reasonable.(4) In relation to rule 8(2)(a) of the FTT Rules, the Appellant accepts that the rule is mandatory where applicable but submits that it does not apply here. The appeal concerns HMRC’s refusal of VAT credit under s. 25(3) VATA 1994, which remains a live issue. Accordingly, the Tribunal retains jurisdiction and the appeal is properly before it.(5) The Appellant further argues that HMRC’s reasons for seeking strike-out are weak and have no real prospect of success at a substantive hearing. The Appellant also submits that the present case is distinguishable from authorities relied upon by HMRC.(6) Finally, the Appellant invites the Tribunal to exercise its case management powers in accordance with rule 2 to refuse the strike-out application. While acknowledging that the Tribunal’s role at this stage is supervisory, the Appellant submits that HMRC’s use of rule 8(2)(a) may be unreasonable in the circumstances.[18]During the oral hearing, the Appellant’s representative, Mr Feng, developed his argument as to the proper interpretation of rule 8 of the FTT Rules.[19]Mr Feng submitted that, under rule 8(1) of the FTT Rules, proceedings will only be struck out where the Appellant has failed to comply with a direction. He placed significant emphasis on the fact that rule 8(1) is concerned with a failure by the Appellant to comply with Tribunal directions, and contended that, in the absence of such a failure, rule 8(2)(a) could not be engaged.[20]Mr Feng further submitted that HMRC accepted that the appeal had been validly made, and that the Tribunal therefore retained jurisdiction to determine it.[21]Mr Feng also referred the Tribunal to two First-tier Tribunal decisions in support of his submission that HMRC ought instead to have withdrawn from the proceedings under rule 17 of the FTT Rules, and that a strike-out under rule 8(2)(a) should not be granted.[22]In Rasam Gayatri Silks Ltd v Revenue & Customs [2010] UKFTT 50 (TC) (“Rasam Gayatri”), Judge Berner rejected as misconceived the argument that there was no longer a decision capable of appeal where the decision had not been withdrawn prior to the appeal being made. In the case of Learna Limited v HMRC [2023] UKFTT 972 (TC) (“Learna Limited”), Judge Aleksander agreed with that approach and declined to strike out the appeal for want of jurisdiction in circumstances where the underlying assessment had been withdrawn.

Submissions by HMRC

[23]HMRC’s principal submission is that the withdrawal of the decision dated 9 October 2025 on 12 January 2026 resulted in there no longer being any appealable decision before the Tribunal. Accordingly, there is no extant decision for the Tribunal to determine.[24]HMRC rely on Oriental Bu Trading Limited v HMRC [2025]UKFTT 1273 (TC) (“Oriental Bu”) in which the Tribunal concluded that “once the decision is withdrawn there is no remaining question of principle for the Tribunal to determine”.[25]HMRC contend that it is within their power to withdraw their decision to reduce the Appellant’s VAT return claim for periods 05/2025 and 06/2025 to nil and to make a new decision if necessary (which has been the case in relation to JHL).[26]In response to JHL’s submission that a fresh decision is a second bite of the cherry and not in the spirit of VATA or the VAT Regulations 1995, HMRC submit that under regulation 29(2) of the VAT Regulations 1995 they have the discretion to allow input tax notwithstanding the absence of prescribed VAT invoices.[27]HMRCalso submit that, had the appeal proceeded, the Tribunal’s role would have been limited to supervisory jurisdiction. In the event that the Tribunal concluded that the original decision was one which no reasonable body of Commissioners could have reached, it would not substitute its own decision but would instead return the matter to HMRC for reconsideration.[28]Furthermore, if the appeal was to proceed and if the Appellant was successful HMRC would still be entitled to replace the original decision but at a later date than the new decision made on 18 February 2026.[29]HMRC reject the argument that, by reason of that withdrawal, the Tribunal is entitled to disregard the Respondents’ submissions or to determine the issues summarily against them.

discussion

[30]I agree with HMRC that the Tribunal lacks jurisdiction to determine the appeal in respect of the decision dated 9 October 2025. Following the withdrawal of that decision, there is no longer any decision within s. 83(1) VATA capable of being the subject of an appeal. It follows that the Tribunal must strike out the proceedings pursuant to rule 8(2)(a) of the FTT Rules.[31]The Tribunal’s supervisory jurisdiction presupposes the continued existence of an appealable decision; it does not extend to reviewing decisions which have been withdrawn and no longer have legal effect.[32]As noted above, Mr Feng’s principal submission is that rule 8(2)(a) of the FTT Rules is engaged only where there has been a failure by the Appellant to comply with a direction under rule 8(1). I do not accept that interpretation. Rules 8(1) and 8(2)(a) address distinct circumstances in which the Tribunal must consider striking out proceedings. There is no dependency between them, and rule 8(2)(a) is not contingent upon the operation of rule 8(1). It is my view that Mr Feng’s submission reflects a clear misinterpretation of the purpose and structure of rule 8 of the FTT Rules.[33]I therefore turn to consider the relevant case law concerning the jurisdictional issue arising in this appeal.[34]It is well established that the Tribunal is a creature of statute and that its jurisdiction is wholly derived from statute (see R & J Birkett v HMRC [2017] UKUT 89 (TCC) at [30]).[35]In LS and RS v Commissioners for Her Majesty’s Revenue and Customs [2017] UKUT 257 (AAC) (“LS and RS”), the Upper Tribunal considered cases in which HMRC issued an initial decision under s. 16 of the Tax Credits Act 2002, followed by a further decision under s. 18 for the same tax year. The Upper Tribunal held that a s. 18 decision supersedes the earlier s. 16 decision. As a result, any appeal against the s. 16 decision can no longer proceed and is treated as having lapsed. In such circumstances, the First-tier Tribunal no longer has a live issue to determine and the appropriate course is to strike out the appeal under rule 8 of the FTT Rules. The Upper Tribunal further held that the First-tier Tribunal cannot continue to determine such appeals on an academic or hypothetical basis.[36]I do not accept the conclusion in Rasam Gayatri (which was decided prior to LS and RS) that the Tribunal retains jurisdiction where the underlying assessment has been withdrawn. In Learna Limited, Judge Aleksander endorsed the approach in Rasam Gayatri and declined to strike out the appeal for want of jurisdiction in circumstances where the underlying assessment had been withdrawn. Judge Aleksander distinguished LS and RS on the basis that, in that case, the issue of new decisions under s. 18 of the Tax Credits Act 2002 had the effect of causing the earlier decisions to lapse and be replaced, whereas in Learna Limited HMRC had not issued a new decision but had merely withdrawn the decision under appeal. I do not agree that the Tribunal retains jurisdiction in circumstances where a decision is not replaced. In my judgment, the better view, consistent with the reasoning in LS and RS and the statutory scheme under s. 83 VATA, is that jurisdiction ceases upon withdrawal.[37]In the present case, HMRC have issued a new decision which had the effect of replacing the decision under appeal, although it was issued several weeks after the original decision had been withdrawn.[38]I agree with (and am bound by) the Upper Tribunal's conclusion at [25] of LS and RS. Although LS and RS concerned statutory replacement rather than withdrawal alone, the underlying principle is the same: the Tribunal’s jurisdiction depends upon the continued existence of a decision capable of appeal. “The reason why the appeal lapses is that there is no longer any decision against which an appeal can be brought and, as a result, the tribunal has no jurisdiction in relation to any appeal that has been lodged. It makes no difference in principle to the reasoning whether the earlier decision ceased to have operative effect before or after the claimant lodged the appeal.”[39]I have considered the decision of this Tribunal in Align Technology Switzerland GmbH v. HMRC [2024] UKFTT 1100 (TC) (“Align Technology”), in which HMRC advanced similar arguments to the present case. In that case, the appellants appealed under both s. 83(1)(b) and s. 83(1)(p) VATA. The appeals under s. 83(1)(b) concerned HMRC’s decision that certain supplies were subject to VAT at the standard rate, while the appeals under s. 83(1)(p) VATA related to assessments raised on that basis.[40]After the appeals had been notified but before they were heard, HMRC withdrew both the decision and the assessments and sought to vacate the hearing. At a case management hearing, the Tribunal (Judge Sinfield), having referred to Charles Kendall Freight Ltd v HMRC [2024] UKFTT 492 (TC) and agreeing with Judge Bailey’s analysis, held that the withdrawal of a decision or assessment has the consequence that there is no longer any matter within s. 83(1) capable of appeal. Accordingly, where a decision is withdrawn before an appeal is made, no right of appeal arises; and where it is withdrawn after an appeal has been made, the Tribunal’s jurisdiction ceases at that point. In such circumstances, rule 8(2)(a) of the FTT Rules requires the Tribunal to strike out the proceedings. However, the Tribunal retains jurisdiction to deal with ancillary matters, such as costs, before the proceedings are finally concluded.[41]In Align Technology, the Tribunal accordingly struck out the appeals against the assessments under rule 8(2)(a). Judge Sinfield further observed that the same reasoning would apply to appeals under s. 83(1)(b) if the underlying decision had been withdrawn. On the facts, however, the Tribunal found that HMRC had not withdrawn the substantive decision, as it had not conceded the legal position. The underlying issue—whether the supplies were subject to VAT at the standard rate—remained live and potentially relevant to other periods.[42]Theconclusion in Align Technology was subsequently confirmed and applied in Oriental Bu Trading. In that case, the Tribunal applied the same reasoning in the context of HMRC’s discretion under regulation 29(2) of the VAT Regulations 1995. The appellant contended that an appealable matter under s. 83(1)(c) VATA survived the withdrawal of HMRC’s assessments. The Tribunal rejected that argument, holding that once the underlying decision and assessments had been withdrawn, there was no remaining issue for the Tribunal to determine. The appeal was therefore struck out.[43]In the present appeal, the decision under challenge for the purposes of s. 83(1)(c) is HMRC’s decision of 9 October 2025 to reduce the Appellant’s input tax credit for the periods 05/2025 and 06/2025 to nil. That decision was based on HMRC’s refusal, in circumstances where the Appellant’s agent did not provide the requested information, to exercise its discretion under regulation 29(2) of the VAT Regulations 1995 to accept alternative evidence of input tax incurred.[44]The remaining question is whether any live dispute subsists between the parties concerning HMRC’s exercise of that discretion in relation to the 9 October 2025 decision, and in particular the amount of input tax that may properly be credited to the Appellant.[45]HMRC has since issued a fresh decision dated 18 February 2026, in which it exercised its discretion under regulation 29(2) of the VAT Regulations 1995 to accept certain elements of the alternative evidence provided by the Appellant. It is not necessary for me to make findings in relation to the earlier decision of 9 October 2025. I observe, however, that HMRC has replaced the 9 October 2025 decision with one that reflects a reconsideration of the evidence and an articulated exercise of discretion.[46]The Appellant has a right of appeal to this Tribunal in respect of the decision of 18 February 2026, subject to any application for permission to bring a late appeal. In any such appeal, the Tribunal would have jurisdiction to determine, in accordance with its supervisory role, whether HMRC’s exercise of discretion under regulation 29(2) of the VAT Regulations 1995 was one which no reasonable body of Commissioners could have made.[47]Inlight of the withdrawal of the decision dated 9 October 2025 and its replacement by the decision of 18 February 2026, I am satisfied that no live issue remains before the Tribunal in respect of the earlier decision. The later decision represents a fresh exercise of discretion and reaches a materially different conclusion.[48]In those circumstances, the appropriate course is for the Appellant to pursue any challenge by way of an appeal against the extant decision of 18 February 2026, should it wish to do so.

right to apply for permission to appeal

[49]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: 15 May 2026