Wimmer Family Office Ltd v The Commissioners for HMRC [2026] UKFTT 882 (TC)

[2026] UKFTT 00882 (TC)Case No TC 09911
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 3 June 2026Date Judgment date: 10 June 2026
Taylor House, London
Appeal reference: TC/2025/02113
PROCEDURE – application for strike out – jurisdiction – requirement to notify relevant officer within HMRC
Before
TRIBUNAL JUDGE STAPENHURST
Between
WIMMER FAMILY OFFICE LTDAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentMr Wimmer of Wimmer Family Office Ltd for AppellantMr Khan, litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]This is an application by the Respondents ("HMRC") to strike out the appeal of the Wimmer Family Office Ltd ("the Appellant") under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) 2009 ("the Tribunal Rules") on the basis that this Tribunal does not have jurisdiction to hear the appeal.[2]HMRC contend that the Appellant did not give written notice of appeal to HMRC as required by s. 49D of the Taxes Management Act 1970 (“TMA”) but instead gave notice of appeal only to the Tribunal. HMRC argue that as the statutory requirements for notifying an appeal to the Tribunal have not been satisfied as the Appellant has failed to follow the procedure set out in the relevant legislation, the appeal must be struck out.

the law

[3]Under Rule 8 of the Tribunal Rules, subsection (2) reads as follows: (2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—(a) does not have jurisdiction in relation to the proceedings or that part of them; and(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.[4]Section 31 TMA 1970 provides for rights of appeal against closure notices and assessment, with penalty appeals flowing from Schedule 24 Finance Act 2007 (“FA 2007”). By virtue of paragraph 16(1) of Schedule 24 FA 2007, an appeal against a penalty is to be treated in the same way as an appeal against an assessment to the underlying tax. It therefore follows the same procedural route as appeals against closure notices and assessments under sections 31A and 49D TMA 1970.[5]Section 31A(1) TMA 1970 provides that a notice of appeal under section 31 must be given in writing to the relevant officer of HMRC within 30 days of the specified date. The specified date is the date of the issue of the assessment or determination. The notice must also specify the grounds of appeal.[6]For an appeal under s.31(1)(b) (a conclusion or amendment in a closure notice), the relevant officer is the officer who gave the closure notice.[7]Section 49D TMA 1970 provides that an appellant may notify an appeal to the Tribunal only where notice of appeal has first been given to HMRC: 49D Notifying appeal to the tribunal (1)This section applies if notice of appeal has been given to HMRC. (2)The appellant may notify the appeal to the tribunal.[8]By virtue of s. 49D(1) TMA 1970, a person can only notify an appeal to the Tribunal if a notice of appeal has been given to HMRC. Sections 31 and 31A TMA 1970 provide that the appeal to HMRC must be in writing (s. 31 TMA 1970) and the notice of appeal must be given to the relevant officer of the Board i.e. the officer who issued the decision (s.31A TMA 1970).

facts and submissions

[10]The Appellant submitted a Notice of Appeal to the Tribunal on 31 March 2025 (the “First Appeal”) in relation to Closure Notices issued by HMRC on 2 June 2023, and Penalty Notices issued on 5 October 2023 for Accounting Periods Ending (APE), 31 December 2017, 31 December 2018 and 31 December 2019 (the “2023 Closure Notices and Penalty Notices”), and sent to the Appellant’s registered address.[11]The First Appeal relates to Corporation Tax liabilities totalling £52,402.98 and penalties totalling £28,428.62.[12]The Tribunal has not been provided with a copy of the 2023 Closure Notices issued on 2 June 2023. However, it was not in dispute that closure notices were issued[13]The letter included in the bundle dated 15 June 2023 states that:
“I am writing to bring my enquiries for the accounts periods ending 31 December 2017, 31 December 2018 and 31 December 2019 to a close. This letter explains the reasoning and figurework used. Please read this letter and correspondence issued under separate cover carefully and speak to your advisors. Formal closure notices have been added to the company‘s Corporation Tax record and will be issued under separate cover”
[14]The 15 June 2023 letter and the Penalty Notices were sent by Officer Newbury, of the HMRC Fraud Investigation Service.[15]I find that Officer Newbury was the “relevant officer” for the purposes of 31A TMA 1970.[16]The Tribunal was referred to an email sent by the Appellant to the “HMRC PDDD Mailbox” and the “ISBC Mailbox” on or about 11 September 2024. In that email, the Appellant stated:
“We are contesting the investigator’s decision to disallow these expenses, as they were in fact incurred wholly and exclusively for business purposes.”
HMRC accepted that this email had been sent to an HMRC mailbox.[17]Mr Kan also accepted that, had this email been sent to the appropriate officer, it would have constituted a valid appeal. However, Mr Khan maintained that the appeal had not been properly made because it was not submitted to the relevant officer, and accordingly, HMRC maintained their position that the Tribunal lacked jurisdiction to hear the appeal.[18]The Notice of Appeal was lodged on behalf of the Appellant by Fieldfisher LLP. In response to the question posed at section 3.2 of the form T240 Notice of appeal (03.25) “Did you appeal the decision to HMRC?”, Fieldfisher LLP ticked the box “No. Contact the tribunal if you are not sure how to proceed”.[19]I have no evidence before me that the September 2024 email was sent to the relevant officer or even the relevant department, prior to the 31 March 2025 appeal being lodged with the Tribunal.[20]I have no evidence before me of any appeal being made to HMRC in respect of the 2023 Penalty Notices prior to the 31 March 2025 appeal being lodged with the Tribunal.[21]The First Appeal was notified to HMRC on 11 June 2025. In that notification, HMRC was made aware that the Notice of Appeal included an application for permission to bring a late appeal. HMRC was also informed that any objection should be made by formal notice and should include the reasons for the objection[22]On 30 July 2025, Cristina Bulboc of Fieldfisher wrote to HMRC in the following terms: “We acknowledge that the late appeal was submitted directly to the Tribunal. This was an oversight – we mistakenly proceeded on the basis that the assessment on Wimmer Family Office Ltd had been the subject of a review and thus s49G(3) TMA 1970 applied[23]On 31 July 2025, HMRC lodged a strike out application in respect of the First Appeal, on the basis that no prior appeal had been made to HMRC as required by statute. It is noted that HMRC’s position, prior to the hearing, was that no appeal had been made to HMRC – the “relevant officer” condition was not relied upon.[24]On 31 July 2025 HMRC wrote to the Appellant directly to explain that they were applying for the First Appeal to be struck out on a jurisdictional point, and that if the Appellant wanted to appeal the 2023 Closure Notices and Penalty Notices, they should make a late appeal to HMRC. HMRC would then consider whether or not they could allow the late appeal, and if they refused it, the Appellant would have an opportunity to apply to the Tribunal for permission to make a late appeal to HMRC.[25]On 4 August 2025, Fieldfisher wrote to HMRC (under cover of a letter dated 1 August 2025), making an application for a late appeal in respect of the 2023 Closure Notices and Penalty Notices.[26]On 20 August 2025, HMRC wrote to the Appellant, refusing the application made on 4 August 2025 for permission to make a late appeal and informing the Appellant of their right to make an application to the Tribunal to issue a decision that HMRC must accept the late appeal.[27]On 10 September 2025, Fieldfisher LLP wrote to notify the Tribunal and HMRC that Fieldfisher LLP ceased acting for the Appellant as of 9 September 2025.[28]On 19 September 2025 the Appellant lodged a new appeal with the Tribunal (the “Second Appeal”). For the avoidance of doubt, the present decision does not concern the Second Appeal.[29]The Tribunal wrote to the parties on 18 February 2026, stating that “Unless either party requests a hearing within 7 days, the strike out application and objection will be determined by a judge on the papers.”[30]On 19 February 2026, the Appellant responded stating that “I would like to request an in person hearing to further shed light and put forward the arguments for this very important matter to which the HMRC has made a completely wrong assessment”.[31]The hearing was listed for an in person hearing on 3 June 2026.[32]The only issue before me is whether or not I should strike out the appeal with reference number TC/2025/02113.

HMRC’s submissions

[33]HMRC submits that s. 31A TMA 1970 states that a notice of appeal must be given in writing, within 30 days after the specified date and to the relevant officer of the Board. The specified date in this case is the date on which the closure notices and assessment were issued.[34]Section 49D(2) TMA 1970 states that the Appellant may notify the appeal to the Tribunal. However s. 49D(1) TMA 1970 states this section applies if notice of the appeal has been given to HMRC.[35]In their original strike out application and in the outline argument submitted to the Tribunal prior to the hearing, HMRC contended that the Tribunal has no jurisdiction to determine the appeal, as no notice of appeal was given to HMRC in the first instance, as per the legislation.[36]However, during the hearing HMRC changed their position, maintaining that although an appeal had been made to HMRC in respect of the 2023 Closure Notices, this appeal had not been made to the relevant officer.

Appellant’s submissions

[37]The Appellant submitted that the present dispute arises from what is said to be a fundamental error in HMRC’s treatment of the Appellant’s tax position, namely the imposition of tax liabilities on what were, in fact, losses over the relevant period.[38]The Appellant further contends that, contrary to any suggestion of inaction, sustained efforts have been made since 2023/2024 to engage with HMRC with a view to resolving the matter. These efforts are said to have included frequent attempts at telephone contact with HMRC and regular instructions to the Appellant’s accountant to liaise with HMRC on their behalf. The Appellant characterises these steps as consistent and repeated, albeit largely unsuccessful due to practical difficulties in obtaining meaningful engagement from HMRC.[39]It is the Appellant’s position that the suggestion that no steps were taken to pursue the matter is incorrect. The Appellant maintains that the issue was raised on numerous occasions, including through attempted verbal resolution in the first instance. The Appellant was not able to point towards any evidence that a written appeal had been made to the relevant officer prior the lodging of the 31 March 2025 appeal to the Tribunal.

DISCUSSIONANDDECISION

[40]The basis of HMRC’s application for the appeal to be struck out under Rule 8(2)(a) of the Tribunal Rules was that no appeal has been notified to HMRC prior to being lodged with the Tribunal, as required by s. 49D TMA 1970. HMRC developed their argument during the course of the hearing to clarify that although an appeal had been notified to HMRC in respect of the 2023 Closure Notices prior to being lodged with the Tribunal, it had not been notified to the relevant officer.[41]I have considered the issues and I have concluded there is no evidence before me that the Appellant notified the relevant officer in HMRC prior to lodging the First Appeal with the Tribunal.Moreover, prior to the First Appeal being lodged, there is no evidence that the notice of appeal was given to, or received by, the officer who issued the decision, or otherwise brought to that officer’s attention.[42]The application falls to be determined by reference to the requirements of s. 31A and 49D of TMA 1970, in terms of notifying HMRC, which is a question of law.[43]In FlashFilmTransportLtdvHMRC[2019] UKFTT 4 (TC) (“FlashFilm”). Judge Redston stated: 74. I therefore considered whether HMRC were able, as a matter of law, to treat a direct tax appeal made to the Tribunal as if it had been made to HMRC, so that the Tribunal has the necessary jurisdiction to decide the dispute. In Patel v HMRC [2018] UKFTT185 (TC), the Tribunal (Judge Brannan) considered a similar issue, namely whether HMRC's care and management powers allowed them to accept a self-assessment return filed by a taxpayer on a voluntary basis, so they could dispense with the requirement at TMA s 8(1) that HMRC must serve a notice to a taxpayer requiring the filing of the return. Judge Brannan considered the case law on HMRC's care and management powers, including R (oao Wilkinson) v IRC [2005] UKHL 30 at [21] and IRC v National Federation of Self-Employed and Small Businesses [1981] STC 260, before deciding at [112]:
"...it is not open for HMRC to dispense with the requirement that it must serve a notice under s.8(1) in order for a taxpayer's return to be a return 'under s.8'. This is an express statutory requirement that cannot be waived by the exercise of HMRC's discretion." 75. In my view, the position is the same in relation to TMA s 49D, which provides that an appellant can only notify his appeal to the Tribunal if he has first appealed to HMRC. HMRC's care and management powers do not allow them to override that statutory requirement, and itfollowsthattheTribunalhasnojurisdictiontodecideadirecttaxappeal,unlessithasfirstbeenmadetoHMRC. 76. The same conclusion has previously been reached in other Tribunal judgments, see Fiorini v HMRC [2017] UKFTT 610 (TC) (Judge Beare), and Thuishyanthan v HMRC [2016] UK FTT 186 (TC) (Judge Clark). That it is correct was recently confirmed, albeit obiter, in R(oao PML Accounting) v HMRC [2018] EWCA (Civ)2231, where Longmore LJ said at [56] that: "...HMRC must be asked to agree to a late appeal before any question of applying to the tribunal for permission can arise. That is for the (perhaps obvious) reason that any tribunal would wish to know, before considering whether to grant permission for a late appeal, the view of HMRC about the reasonableness of the excuse for not giving notice before the 30 days had expired." 77. There are also other reasons why appeals have to be madefirst to HMRC: the Officer receiving the appeal may consider the reasons and change his position, and the appellant has the opportunity to ask for, or accept, a statutoryreview carried out by a different HMRC Officer. Appeals made first to HMRC may thus be settled between the parties without reference to the Tribunal."
(emphasis added)[44]Section 31A TMA 1970 is headed "Appeals: notice of appeal" and sets out the requirements for making an appeal. In relation to appeals made "under s. 31" it provides that notice of an appeal under s. 31 must be given in writing, within 30 days after the issue of the closure notice or making of the assessment and to the relevant officer of the board. In my view, for the reasons set out in this decision, s. 31A TMA 1970 cannot be satisfied where, instead of being given to the relevant HMRC officer, the appeal is first notified directly to the Tribunal.[45]The decision in Vekaria v HMRC [2023] UKFTT 288 (TC) concerned the validity of a pre-emptive appeal. However, the Tribunal’s reasoning at [82] is also instructive as to the consequences of failing to notify the relevant officer. “Furthermore it must be sent to the relevant officer of the board. Accordingly the argument that an appeal can simply be sent to HMRC and it can be expected that it would be forwarded to the correct department cannot be correct. Not only are these issues clear from the wording of statute but it would make a nonsense of the statute if taxpayers could lodge pre-emptive appeals sent to any office of HMRC.”[46]I agree with Judge Scott’s analysis in Vekaria. The statutory language is clear and prescriptive: an appeal must be given to the relevant officer. It is not sufficient that a communication is sent to HMRC more generally, for example by way of an email to an undirected HMRC mailbox.[47]Section 49D TMA 1970 is engaged only where a notice of appeal has already been given to HMRC. Although it does not repeat the detailed requirements set out in s. 31A, those requirements fall to be read as informing the meaning of the phrase “given to HMRC”. Properly construed, s. 49D applies only where a notice of appeal has been given in accordance with s. 31A—that is, to the relevant HMRC officer—rather than by a more general or indirect notification.[48]The provisions in s.49D(2) are therefore predicated on an appeal having first been notified to HMRC in accordance with s. 31A.The right to notify an appeal to the Tribunal arises only once that step has been taken. Those statutory options are not available where no such notice has been given.[49]I therefore conclude that, under the statutory scheme, an appeal must first be made to the relevant officer of HMRC before it may be notified to the Tribunal.[50]In the present case, the Appellant did not give written notice of appeal to the relevant HMRC officer, as required by sections 31A and 49D(1) TMA 1970, prior to notifying the Tribunal. Accordingly, The First Appeal was not a valid appeal to this Tribunal, with the consequence that the Tribunal lacks jurisdiction to determine it..[51]The appeal is struck out under Rule 8(2)(a) of the Tribunal Rules.

Right to apply for permission to appeal

[52]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: 10 June 2026