Sameer Khan v The Commissioners for HMRC [2026] UKFTT 884 (TC)

[2026] UKFTT 00884 (TC)Case No TC 09913
FIRST-TIER TRIBUNAL
TAX CHAMBER
Venue Birmingham Civil and Family Justice CentreHearing Heard on: 16 April 2026Date Judgment date: 10 June 2026
Appeal reference: TC/2025/00767
PROCEDURE – applications to strike-out appeals under rule 8(2(a) of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 – applications granted
Written representations: 6 May 2026
Before
TRIBUNAL JUDGE MARK BALDWIN
Between
SAMEER KHANAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentThe Appellant in person for in personDavid Corps, litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]HMRC has applied for the appeals brought by the Appellant (“Mr Khan”) to be struck out on the basis that the Tribunal does not have jurisdiction to entertain them. In one case this is because HMRC have withdrawn the assessment against which Mr Khan appealed. In the other cases it is because the appeals are against VAT assessments and the law requires VAT returns for the relevant periods to be filed before an appeal can be brought and Mr Khan has not filed those returns.

Procedural History

[2]On 23 May and 14 June 2023, as part of their compliance checks, HMRC officers visited Mt Khan’s business premises and interviewed Mr Khan. They wrote to Mr Khan on 3 January 2024 about his failure to file VAT returns for the periods 04/18 – 04/23 and asked for business records, which Mr Khan did not provide.[3]On 13 May 2024 HMRC raised VAT assessments on Mr Khan in respect of VAT periods 04/20-04/23 totalling £101,753.[4]On 13 January 2025 a bankruptcy order made against Mr Khan on 15 April 2024 was annulled.[5]On 5 February 2025 Mr Khan notified an appeal against these assessments. HMRC accept that the appeal was made promptly following the annulment of the bankruptcy order and do not object to the appeal proceeding on grounds of lateness.[6]On 28 July 2025, HMRC emailed Mr Khan’s representative, Rosemount Accountancy (“Rosemount”), to say that their records showed that no returns had been filed by Mr Khan in respect of the periods which had been assessed and asked for confirmation that returns had been filed.[7]On 6 August 2025 HMRC withdrew their assessment for VAT period 04/20, reducing the total amount assessed to £82,306.[8]Also on 6 August 2025, HMRC applied to the Tribunal for an order that, unless Mr Khan identified a matter over which the Tribunal had jurisdiction and submitted his VAT returns for periods 07/20 to 04/23, his appeals would be struck out.[9]On 18 August and 18 September 2025, HMRC’s litigator asked Rosemount for confirmation that Mr Khan had filed VAT returns for the periods appealed against.[10]On 10 October 2025, Mr Naeem of Rosemount phoned HMRC and asked how to file the missing returns. The officer said that, if they were unable to file via the HMRC portal, the information could be sent to him, and he would input the returns manually. Mr Naeem said he would contact HMRC if there were any issues doing so.[11]On 30 October 2025, Rosemount requested advice from the Tribunal on how to file the VAT returns, as the HMRC portal showed that Mr Khan’s registration had been cancelled with effect from 1 February 2020.[12]On 31 October 2025, Mr Naeem of Rosemount phoned HMRC twice, and was again told that the return information could be sent to the HMRC officer who would input it. The officer also explained that, as he had been told that Mr Khan had gone into bankruptcy, he had deregistered Mr Khan from immediately after the date (31 January 2020) on which Mr Khan’s last VAT return was submitted.[13]On 31 October 2025 HMRC emailed the Tribunal confirming that no returns had been received from Mr Khan and that they had suggested that he file returns by providing the data directly to the officer.[14]During phone conversations on 14 and 18 November 2025, Mr Naeem of Rosemount was informed by HMRC that the date of cancellation was an error and would be corrected, and HMRC reminded him that the requirement to file VAT returns remained and that the HMRC officer had offered to input the relevant information if this was provided to him.

The Law

[15]HMRC assessed Mr Khan under section 73(1) of the Value Added Tax Act 1994 (“VATA”), which provides:
“Where a person has failed to make any returns required under this Act (or under any provision repealed by this Act) or to keep any documents and afford the facilities necessary to verify such returns or where it appears to the Commissioners that such returns are incomplete or incorrect, they may assess the amount of VAT due from him to the best of their judgment and notify it to him.”
[16]Section 83 VATA(1) VATA confers appeal rights in respect of many matters. So far as relevant it provides:
“(1) Subject to sections 83G and 84, an appeal shall lie to the Tribunal with respect to any of the following matters – … (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;” (i) under section 73(1) or (2) in respect of a period for which the appellant has made a return under this Act;”
[17]Rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (“the FTT Rules”) provides that:
“(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; … (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.”

Summary of the Parties’ Positions

[18]HMRC’s case is that these appeals should be struck out. In the case of the appeal against the assessment appeal for period 04/20 this is on the basis that the underlying assessment has been withdrawn and therefore there is no issue between the parties for the Tribunal to determine.[19]As regards the appeals against the remaining assessments, HMRC’s position is that VAT returns have not been filed for the periods in question and therefore the Tribunal does not have jurisdiction under section 83(1)(p)(i) VATA.[20]HMRC say that this deficiency has been repeatedly brought to the attention of Mr Khan’s representative and HMRC have offered to help complete the relevant VAT returns if they were sent the raw material to do that.[21]Although Mr Khan was unrepresented before us, he submitted two written notes prepared for him by Mr Nick Harris (“Mr Harris”) of BLG Legal. There was some uncertainty about Mr Harris’ status and whether he was Mr Khan’s representative for the purposes of rule 11 of the FTT Rules or whether that continued to be Rosemount. As Mr Khan endorsed the notes prepared by Mr Harris, I was happy to consider them.[22]In essence, Mr Khan submits that HMRC’s application, except as regards period 04/20, should be dismissed. Mr Khan accepts that the VAT returns for the relevant periods remain outstanding, but he says that this is not a matter of deliberate non-compliance. His inability to file VAT returns has arisen from a combination of factors including the loss of business records following a fire, significant personal disruption including the need to travel abroad because of family illness, his own health issues and business disruption, including his being made bankrupt. In addition, for a period his VAT registration was, HMRC accept wrongly, cancelled and that gave him difficulty accessing the VAT system.[23]Taken together, Mr Khan says that this has created a situation where he needs to reconstruct his VAT returns. He says that he is actively engaged in doing this and taking steps to obtain the necessary records. He says that it would be contrary to the overriding objective in the FTT Rules to bring these proceedings to an end at this stage. He says that the Tribunal should adjourn these proceedings for a brief period to allow the VAT records to be reconstructed.

Discussion

[24]I perceived an apparent inconsistency between HMRC’s current position that, in order for the Tribunal to have jurisdiction, VAT returns must be filed before an appeal is brought and the accommodation seemingly being offered to Mr Khan, at least in the earlier stages of these proceedings, where HMRC seemed prepared to help him to file VAT returns after he had given notice of appeal and did not appear to find anything particularly problematic in doing that. I was anxious to understand whether, despite the apparent requirement in section 83(1)(p)(i) VATA that VAT returns are filed before a notice of appeal can be given, there was some provision or process which allowed that apparent error to be corrected. I was particularly anxious not to strike out the appeals given that, if he wished to start new appeals, Mr Khan would need to obtain permission to appeal late, which he might not obtain, and not to strike out his appeals if doing so would be contrary to some generally prevailing practice.[25]Mr Corps was unable to give an account of HMRC’s position in the hearing, and so I asked HMRC for a clear written explanation of what looked like a practice of allowing appellants who have not filed VAT returns to continue with their appeals notwithstanding section 83(1)(p)(i) VATA and an explanation of their understanding of the legal justification for that practice. I also asked them to indicate whether, were this appeal to be struck out and Mr Khan to seek permission to make a fresh appeal, they would object to that application (assuming Mr Khan proceeded promptly to file the missing VAT returns). I also asked Mr Khan to indicate when he might reasonably expect to be able to file his outstanding VAT returns.[26]I received some detailed submissions from HMRC, but nothing from Mr Khan.[27]In their written submissions HMRC said that they start from the position that there is no right of appeal under section 83(1)(p)(i) VATA unless the returns for the periods assessed have been filed. Mr Corps says that HMRC officers are expected to act in accordance with that policy. However, HMRC also consider that they are under a duty to encourage missing returns to be filed and, wherever possible, to reach agreement with taxpayers about the right amount of tax to be paid. A VAT return is the primary document setting out a trader’s view of their VAT liability. If a late filed return indicated agreement to the assessed amounts, it would allow the dispute between the parties to be settled. As the burden of proof is on an appellant to demonstrate that assessments are incorrect, HMRC’s view is that a return is a key part of discharging that burden. If someone cannot file a return, perhaps because they have not kept the necessary records, HMRC’s view is that this strongly suggests that they will be unable to articulate a properly evidenced challenge to the assessments in a substantive appeal.[28]So, HMRC’s position here, which they say they have consistently maintained, is that the appeal should be struck out because Mr Khan has not filed the required VAT returns. HMRC say that it was never their position, whatever impression might have been created by their encouraging Mr Khan to file the late VAT returns and offering to help him do that, that Mr Khan’s appeal could be validated by a subsequent filing of VAT returns. If those returns were filed, HMRC would be able to consider whether there was a basis for settlement. If not, it might be possible for Mr Khan to bring a late appeal against the assessments.[29]This Tribunal only has the jurisdiction conferred on it by statute. It is not possible for the parties to confer jurisdiction on the Tribunal by agreement or simply by not objecting to the want of jurisdiction in a particular case.[30]The need for VAT returns to have been filed before an appeal can be entertained under section 83(1)(p) VATA has been considered in a number of cases. In Haven Dry Cleaners Ltd v HMRC, [2025] UKFTT 00781 (TC) at [91], the Tribunal observed:
“HMRC submitted that the right to appeal against a VAT assessment under section 83(1)(p) VATA94 only applies to an assessment in respect of a period for which the appellant has made a return. HDCL had (and still has) never made any VAT returns and thus could not appeal against the assessment. HMRC contend that if there is no right of appeal, the FTT has no jurisdiction in the matter and the part of the appeal that relates to the VAT assessment should be struck out. We accept this submission. It is clear from the words of section 83(1)(p) that a person can only appeal against an assessment under section 73(1) or (2) VATA94 “in respect of a period for which the appellant has made a return under this Act”
. It follows that HDCL’s appeal in relation to the VAT assessment or the amounts assessed must be struck out as it is not a matter within section 83(1) and the FTT does not have any jurisdiction to deal with it.”[31]In Philip Oag v HMRC, [2022] UKFTT 00287 (TC), the Tribunal held (at [44]) that “where an assessment is issued because no return has been filed, there is no right of appeal unless or until a return is filed”. In Yun He v HMRC, [2020] UKFTT 317 (TC), and Withington KFC Services Ltd v HMRC, [2020] UKFTT 319 (TC), the Tribunal also held that a VAT assessment is not an appealable matter where the appellant has not filed a VAT return.[32]As the appellant in these cases had still not filed the required VAT returns by the time of the hearing, none of these cases expressly addressed the question of jurisdiction where the appellant filed the required VAT returns between the date when they brought their appeal and the date when the question of jurisdiction was considered. In a very old case, Shaft Sports Ltd v CCE, [1983] VATTR 180, the VAT Tribunal (dealing with precursor but identically drafted legislation) held that the relevant VAT returns should be filed before any notice of appeal was given, but added that, if that was wrong, the latest date for filing the return would be when any strike out application was made.[33]This question did arise in Staysure.co.uk Ltd v HMRC, [2022] UKFTT 00134 (TC) (”Staysure”). Here the appellant filed its notice of appeal on 17 March 2017 and filed the relevant VAT return on 22 January 2018. The Tribunal held that, when it notified its appeal, the appellant did not have a right to appeal the assessment, as it had not filed the relevant VAT return, and went on to hold, at [50], that “the natural reading of the statutory provision [section 83(1)(p)(i) VATA] is that a person has to have a right of appeal before they make the appeal, and a Notice of Appeal cannot be retrospectively validated”.[34]The Tribunal then allowed the appellant to make an oral application for permission to make a late appeal (which HMRC did not oppose) and waived the requirement for a notice of appeal to be in writing. Although HMRC did not oppose the appellant being given permission to appeal late, the Tribunal considered for itself whether to give permission to make a late appeal applying the principles set out in Martland v HMRC, [2018] UKUT 178 (TC), at [44].[35]It is clear from these decisions that the natural and correct reading of section 83(1)(p)(i) is that a person has to have a right of appeal before they make the appeal, this requires them to have filed the relevant VAT returns and an appeal which was invalidly notified (because relevant VAT returns had not been filed) cannot be retrospectively validated (by a later filing of the missing returns).[36]It follows from this that, whatever impression HMRC might have created by encouraging Mr Khan to file the missing VAT returns late and even offering to help him do this, the appeals in respect of all periods other than 04/20 must be struck out.[37]If Mr Khan does file the missing VAT returns, he will be able to notify an appeal against the assessments. However, he would need permission to appeal out of time, as the appellant did in Staysure.[38]It is important to remember that, whatever position HMRC take in relation to a possible late appeal, the question whether a late appeal is admitted is in all cases a judicial one for the Tribunal, not an administrative one for HMRC. Rule 20(4) of the FTT Rules is clear about this: “(4) If the notice of appeal is provided after the end of any period specified in an enactment referred to in paragraph (1) but the enactment provides that an appeal may be made or notified after that period with the permission of the Tribunal—(a) the notice of appeal must include a request for such permission and the reason why the notice of appeal was not provided in time; and(b) unless the Tribunal gives such permission, the Tribunal must not admit the appeal.” (my emphasis) (a) the notice of appeal must include a request for such permission and the reason why the notice of appeal was not provided in time; and (b) unless the Tribunal gives such permission, the Tribunal must not admit the appeal.” (my emphasis)[39]So, as it did in Staysure, the Tribunal would need to consider for itself whether to give Mr Khan permission to make a late appeal applying the principles set out in Martland v HMRC, [2018] UKUT 178 (TC), as elaborated in later cases.[40]Although permission for a late appeal is not in HMRC’s gift, their position and any submissions they might make in a particular case are clearly very relevant factors to be considered. In that context, I draw Mr Khan’s attention to Mr Corps’ comment in his written submissions that, were Mr Khan to file the missing VAT returns within 30 days of the release of this decision, HMRC would not be minded to oppose any application he might make for permission to appeal late.[41]So far as the appeal against the assessment for VAT period 04/20 is concerned, both HMRC and Mr Khan agree that this appeal should be struck out under rule 8(2)(a) of the FTT Rules, and the Tribunal decisions in Align Technology Switzerland GmbH v HMRC, [2024] UKFTT 001100 (TC), and Charles Kendall Freight Ltd v HMRC, [2024] UKFTT 492 (TC), confirm that this is the correct procedure to follow in such cases.

Disposition

[42]For the reasons set out above, these appeals are struck out.

Right to apply for permission to appeal

[43]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