Beritaz Care Ltd v The Commissioners for HMRC [2026] UKFTT 912 (TC)

[2026] UKFTT 00912 (TC)Case No TC 09922
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 8 June 2026Date Judgment date: 18 June 2026
Decided on the papers
Appeal reference: TC/2026/00154
VAT – Grouping – application to add member to a VAT Group – no decision within 90 days - membership deemed granted but discretion to commence effect from retrospective date refused – appeal struck out as no tribunal jurisdiction
Before
TRIBUNAL JUDGE MATTHEW DONMALL
Between
BERITAZ CARE LTDAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentThe Tribunal determined HMRC’s strike out application of 24 April 2026 on 8 June 2026 without a hearing under rule 29(3) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.DECISION

Introduction

[1]HMRC applied on 24 April 2026 for the Appellant’s appeal to be struck out under rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (the FTT Rules) on the basis that the Tribunal does not have jurisdiction in relation to the proceedings (the Strike Out Application).[2]The Appellant is the representative member of a VAT Group (the Beritaz VAT Group). The appeal arises because the Appellant applied on 8 May 2025 for a further corporate group member, Robertson Nursing Home Limited (RNHL) to be treated as a member of the Group with effect from 1 May 2021. As there is an issue as to what constitutes an application for relevant purposes, I will refer to this neutrally as the RNHL Membership Request. The RNHL Membership Request was granted, but only from 8 May 2025, and not from 1 May 2021 as the Appellant had sought (the Decision). That Decision was upheld on review, and the Appellant has appealed.[3]The question on the Strike Out Application is whether this Tribunal has jurisdiction to consider the appeal. Rule 8(2)(a) of the FTT Rules provides that the Tribunal muststrike out proceedings if the Tribunal does not have jurisdiction. As the Upper Tribunal observed in Woodstream Europe Ltd v HMRC [2018] UKUT 398 (TCC):
“If the FTT lacks jurisdiction it must strike out the proceedings. That is a binary decision, which the Tribunal must address and determine at the hearing of the strike out application.”
The task on the present Strike Out Application is therefore to determine whether jurisdiction does or does not exist.[4]This decision is made on the papers under rule 29 of the FTT Rules, the Appellant having had the opportunity to make representations in respect of the Strike Out Application and having made such representations on 8 May 2026 (the Response).

Background

[5]I have limited papers before me, being the Notice of Appeal of 13 January 2026, HMRC’s review conclusion of 30 December 2025, HMRC’s statement of case of 23 March 2025, the Strike Out Application and the Response. From these, the background can be summarised as follows:(1) On 1 May 2021, the Appellant registered for VAT as the representative member of the Beritaz VAT Group along with five other entities, including Robertson Care Home Ltd. RNHL was not however included within the Beritaz VAT Group. (The Appellant states that this was due to an administrative oversight by its former VAT advisors).(2) On 8 May 2025, the Appellant made the RNHL Membership Request for RNHL to be added to the Beritaz VAT Group with effect from 1 May 2021.(3) HMRC did not refuse the RNHL Membership Request within 90 days.(4) On 6 August 2025, the Appellant’s agent wrote to HMRC stating that as the statutory 90 day period for refusal had expired, RNHL must be treated as a member of the Beritaz VAT Group.(5) On 14 August 2025, in the Decision, HMRC confirmed that RNHL was to be treated as a member of the Beritaz VAT Group, but with effect from 8 May 2025 and not from 1 May 2021. According to the Review Conclusion: Officer Segnatelli refused to approve the earlier date of 1 May 2021 on the basis that they considered your VAT grouping structure to be a form of tax avoidance. HMRC Internal Manual VGROUPS02550 explains that HMRC will always refuse retrospective VAT grouping for unauthorised VAT group treatment if it is being used for avoidance, abuse or evasion. Officer Segnatelli relied upon Revenue and Customs Brief 2 2025 (RCB 2 2025) published on 24 April 2025. This provides specific details on HMRC’s treatment of state-regulated care providers that form a VAT group with a non-state-regulated provider of welfare services. It identifies the use of VAT grouping structures to recover VAT on costs that relate to supplies of welfare services that would otherwise be exempt from VAT as a form of tax avoidance.(6) On 30 December 2025, the Review Conclusion upheld the Decision, the Review Officer being “satisfied that Officer Segnatelli was correct to refuse a retrospective date of 1 May 2021”.(7) On 13 January 2026, the Appellant submitted the present appeal to the Tribunal. The grounds of appeal rely on what is described as a “fundamental inconsistency” in HMRC’s position, which is that on the one hand, the Decision refused to allow the RNHL Membership Request to take effect from 1 May 2021 due to it being considered a form of tax avoidance, but on the other hand the RNHL Membership Request was allowed from 8 May 2025.(8) On 24 April 2026, HMRC made the Strike Out Application on the basis that the Tribunal does not have jurisdiction, there having been no refusal of an application under s.43B of the Value Added Tax Act 1994 (VATA) for the purposes of section 83(1)(k) VATA.

Relevant Legal Provisions on Grouping and Appeals

[6]Section 43A(1) VATA provides for eligibility for treating companies as members of a VAT group: Two or more UK bodies corporate are eligible to be treated as members of a group if —(a) one of them controls each of the others,(b) one person (whether a body corporate or an individual) controls all of them, or(c) two or more individuals carrying on a business in partnership control all of them.[7]Section 43B provides for applications for treatment as members of a group and HMRC’s response to the same:(1) This section applies where an application is made to the Commissioners for two or more persons, who are eligible by virtue of section 43A, to be treated as members of a group.(2) This section also applies where two or more persons are treated as members of a group and an application is made to the Commissioners— (a) for another person, who is eligible by virtue of section 43A to be treated as a member of the group, to be treated as a member of the group, (b) for a person to cease to be treated as a member of the group, (c) for a member to be substituted as the group’s representative member, or (d) for the persons no longer to be treated as members of a group.(3) An application with respect to any persons– (a) must be made by one of them or by the person controlling them, and (b) in the case of an application for the persons to be treated as a group, must appoint one of them as the representative member.(4) Where this section applies in relation to an application it shall, subject to subsection (6) below, be taken to be granted with effect from— (a) the day on which the application is received by the Commissioners, or (b) such earlier or later time as the Commissioners may allow.(5) The Commissioners may refuse an application, within the period of 90 days starting with the day on which it was received by them, if it appears to them– (a) in the case of an application such as is mentioned in subsection (1) above, that the persons are not eligible by virtue of section 43A to be treated as members of a group, (b) in the case of an application such as is mentioned in subsection (2)(a) above, that the person is not eligible by virtue of section 43A to be treated as a member of the group, or (c) in any case, that refusal of the application is necessary for the protection of the revenue.(6) If the Commissioners refuse an application it shall be taken never to have been granted.[8]The Tribunal’s jurisdiction is provided for in s.83 VATA: (1) Subject to sections 83G and 84, an appeal shall lie to the tribunal with respect to any of the following matters— (k) the refusal of an application such as is mentioned in section 43B(1) or (2);[9]Additionally, s.84 VATA makes provision about the nature of such an appeal: (4A) Where an appeal is brought against the refusal of an application such as is mentioned in section 43B(1) or (2) on the grounds stated in section 43B(5)(c)—(a) the tribunal shall not allow the appeal unless it considers that HMRC could not reasonably have been satisfied that there were grounds for refusing the application,(b) the refusal shall have effect pending the determination of the appeal, and(c) if the appeal is allowed, the refusal shall be deemed not to have occurred.

Case law

[10]The leading authority in this area is the Upper Tribunal decision in Dollar Financial UK v HMRC [2023] UKUT 256 (TCC). However, to understand that decision it is helpful first to consider two prior cases, to which the Upper Tribunal made reference. In doing so, I consider it helpful to identify a conceptual distinction as between an application for membership of a VAT Group and a request that such membership, if granted, is backdated to an earlier time than the date of application.[11]In University of Essex v HMRC [2010] UKFTT 162 (TC) concerned a decision by HMRC to refuse retrospective de-grouping of a company as of 2 August 2004 rather than from the date of the application (4 May 2005). The Tribunal considered that it did have jurisdiction to consider an appeal against a refusal to back-date the de-grouping on the facts, on the basis that that was a refusal of the application that had been made [50-51]: 50. Mr Baldry argued firstly that the tribunal had no jurisdiction in respect of the appeal on the second issue. He referred us to s 83(k) VATA under which an appeal lies to the tribunal with respect to ‘the refusal of an application such as is mentioned in section 43B(1) or (2)’. He drew our attention to s 43B(5), which contains a distinct provision for refusal of an application. He argued that, subject to sub-s (5), if HMRC did not exercise its discretion to grant the application for de-grouping from an earlier or later date, the de-grouping would take effect in any event from the date on which the application was received by HMRC. The refusal referred to in s 83(k) is confined to a refusal under s 43B(5), and there was no such refusal in this case. [51] We do not agree that s 83(k) should be construed in this restrictive way. If it had been intended to confine the right of appeal to the tribunal to refusals of applications falling only within s 43B(5), s 83 could have said so. We regard the application by the university to de-group UAG as an application to de-group on 2 August 2004. By refusing to agree to the back-dating HMRC was refusing the application that had been made. That refusal is a refusal falling within s 83(k). It follows that the tribunal has jurisdiction in respect of the second issue…[12]In Copthorn Holdings Ltd (No. 1) v HMRC [2013] UKFTT 190, the taxpayer had applied for the retrospective inclusion of two companies into a VAT group, in a situation where it had been mistakenly believed that two companies were members of the VAT group when in fact they were not. Those applications had been refused by HMRC within 90 days in letters which purported to refuse treatment as a member of the VAT group entirely (i.e. not just a refusal of the retrospective treatment element of the application), see [39-40], [58-60], and [107]. The Tribunal considered whether there was jurisdiction to consider on appeal the exercise of HMRC’s discretion under s.43B(4) to allow retrospective effect. The FTT at [115-121] considered it did have jurisdiction, agreeing with the comments in University of Essex at [51] cited above about HMRC having refused “the application that had been made”.[13]The Tribunal went on at [122] to draw attention to the significance to the fact that the refusals in the decisions before it were “blanket” refusals, i.e. were not refusals of the s.43B(4)(b) discretion alone: Even if we were held to be incorrect in our above conclusions concerning the construction of the legislation in its current form, we consider that we do have jurisdiction in the present case, as a result of the terms of the two letters from HMRC (as set out at [107] above). Each is expressed in terms of a ‘blanket’ refusal of the application, rather than being couched in terms of a decision by HMRC not to exercise their discretion to permit an application to be granted with effect from a date earlier than that on which they received the application in question. Although the letters make reference to the refusal as being ‘per VAT Notice 700/2’, they make no reference to the exercise of HMRC’s discretion under s 43B(4)(b), VATA 1994. CHL’s Third and Fourth Appeals therefore relate, in each case, to ‘the refusal of such an application such as is mentioned in section 43B(1) or (2)’, and so fall clearly within the jurisdiction conferred by s 83(1)(k), VATA 1994.[14]At [124], the Tribunal went on to say there would have been a significant distinction had the decisions not been refusals altogether, but merely a decision not to allow the treatment to take effect retrospectively: [124] We consider that there is a significant distinction between a decision by HMRC not to exercise the discretion under s43B(4)(b), VATA 1994, and refusing the application altogether. If HMRC had said that they accepted the applications but had decided not to exercise their discretion to permit them to take effect retrospectively, the position would arguably have been markedly different. On the hypothesis that our conclusions relating to jurisdiction, including our endorsement of the views set out in Save and Prosper Customs and Excise Comrs v Save and Prosper Group Ltd [1979] STC 205, a case concerning the provisions of s.21 of the Finance Act 1972, which are materially different from those under s.43B VATA. and University of Essex, might be held to be incorrect, a decision by HMRC expressed in that form would have left open the question of the extent to which such a decision could be questioned through the tribunal. As the Third and Fourth Appeals do not on their facts directly raise that question, we think it better for the issue to be left to be resolved at some future stage in the context of other parties’ appeals.[15]The Tribunal proceeded to direct HMRC to consider afresh the group registration applications in question. HMRC did so and again refused them, which led to a further appeal, Copthorn Holdings (No. 2) [2015] UKFTT 405 (TC). This time, the letters made clear that the applications were however being accepted insofar as they were to be given effect on the day on which the application was received [49]. There was however no discussion about whether the Tribunal had jurisdiction, Judge Nowlan proceeding on the assumption that he did (albeit a limited one), at [52].[16]Dollar Financial UK Ltd v HMRC [2023] UKUT 256 (TCC) concerned the group registration of a related company, Dollar Financial Group Inc (DFGI), which had been a member of the DFUK VAT Group since 27 June 2013, which was the date of the initial application made by PwC acting on its behalf. Over three years later, DFUK had written to HMRC seeking to amend the date from which DFGI was included in the DFUK VAT Group, back-dating that membership to 1 July 2012. HMRC had refused that amendment application by a decision on 6 March 2018, leading to the appeal.[17]The FTT decision, [2021] UKFTT 253 (TC), had found that there was no valid application under s.43B, because DFGI was already a member of the VAT group and s.43B(2) makes no provision for an application to amend the date from which group membership takes effect. The FTT went on at [62-65], in the alternative, to find that even if there had been a valid application, as there was no refusal within 90 days, the effective date of registration would be the date of the receipt of the application.[18]There were three grounds of appeal to the UT, all of which were rejected. The first ground related to a discrete argument that DFUK did not have a right of appeal under s.83(1)(a), which provides for an appeal against a refusal of registration (i.e. not about VAT grouping per se). The second ground related to the operative basis of the FTT decision that there was no valid application under s.43B(1) or (2), such that there was no right of appeal under s.83(1)(k), which the UT found was correct, at [38].[19]The UT proceeded then to consider DFUK’s argument on ground three, namely that the FtT was wrong to hold that, if DFUK did make a valid application under s 43B VATA 1994, it was deemed granted from the date of receipt so that the refusal of the application was of no legal effect with no right of appeal under s 83(1)(k) VATA 1994:40. Mr Rivett submitted that the FtT was wrong to hold that, if DFUK did make a valid application under s 43B VATA 1994, it was deemed granted from the date of receipt so that the refusal of the application was of no legal effect with no right of appeal under s 83(1)(k) VATA 1994.41. It is uncontroversial that HMRC did not respond to DFUK’s letter of 29 September 2016 within the 90-day period referred to in s 43B(5). The FtT said:
“67. In this case there is no doubt that HMRC did not respond within the 90 day period which expired on 29 December 2016. Where an application is not refused within 90 days it is deemed to have been granted with effect from the date on which it was received by HMRC. At that date DFGI was already a member of the DFUK VAT Group so the Application had no legal effect.” 42. Mr Rivett submitted that the FtT did not appreciate the significance of HMRC having made two separate refusals in their Decision Letter, namely: i. a refusal, under s 43B(5)(b), of an application under s 43B(2)(a) on the ground that DFGI did not have a ‘fixed establishment’ in the UK between 1 July 2012 and 27 June 2023 and so did not meet the eligibility criteria in s43A; and ii. a refusal to exercise their discretion under s 43B(4)(b) to grant the application with effect from an earlier date, ie 1 July 2012. 43. Any decision to refuse the application under s 43B(5)(b) was of no legal effect because that refusal was not made within 90 days so that the application took effect from the day that it had been received by HMRC. We accept that if HMRC had refused the application (on the assumption that it was a valid application) within 90 days then that decision would have given rise to a right of appeal under s 83(1)(k) of VATA 1994 as it would undoubtedly have been a refusal of an application mentioned in s 43B(2). In this case, however, there was no such refusal within 90 days and so the application, if it had been valid, would have taken effect from the day on which it was received by HMRC, ie 29 September 2016. 44. If the application to amend the date on which DFGI became a member of the VAT grouping is taken to be granted with effect from 29 September 2016, because HMRC did not issue any refusal within 90 days, then there was no “refusal of an application (our emphasis) such as is mentioned in s43B(1) or (2)”
. In the absence of such a refusal, there was never any right of appeal under s83(1)(k) VATA 1994. However, Mr Rivett submitted that a refusal to exercise discretion under s43B(4)(b) is a “refusal” within s 83(1)(k) carrying a right of appeal. 45. In Save and Prosper Group, there was no question before the Court that there had been a valid application made to the Commissioners and that the Commissioners had made a decision upon that application. Neill J considered the jurisdiction of the Tribunal and said:
“… It seems to me that a decision by the commissioners that they had no jurisdiction to entertain the application submitted to them constituted a refusal for the purpose of s 40(1)(g). That paragraph gives the right to an appellant to appeal against the tribunal’s findings with respect to: ‘any refusal of an application under section 21 of this Act’. I am therefore satisfied that this appeal is properly before this court.” 46. Mr Rivett also referred to the decision of the FtT in University of Essex v HMRC [2010] UKFTT 162 (TCC) (“Essex University”) in which the FtT considered the refusal of HMRC to allow Universal Accommodation Group Ltd (“UAG”) to cease to be a member of the University’s VAT group from a date earlier than the date of the application to de-group UAG. The Tribunal referred to s 43B of VATA 1994. HMRC claimed the FtT had no jurisdiction to entertain an appeal under s 83(1)(k) because the refusal referred to in that section is confined to a refusal under s 43B(5) and there had been no such refusal. The FtT rejected the claim that s 83(1)(k) should be construed in such a restrictive way. If it had been intended to confine the right of appeal to the FtT to refusals of applications falling only within s 43B(5), s 83 could have said so. The FtT held that the application by the University to de-group UAG was an application to de-group on a particular date and by refusing to agree to the backdating, HMRC was refusing the application that had been made. As Ms McCarthy submitted, UAG had made an application to cease to be treated as a member of the group and so there was an application made to HMRC as permitted by s 43B(2). A decision was made by HMRC within 90 days refusing to allow UAG to be treated as ceasing to be a member of the group on the date sought. As the FtT said at [51], by refusing to agree to the backdating, HMRC was refusing the application that had been made. It is perhaps unsurprising in those circumstances that the FtT concluded that there had been a refusal of an application under s 43B(1) and (2), giving rise to a right of appeal under s 83(1)(k). 47. Finally, Mr Rivett referred to the decision of the FtT in Copthorn Holdings Ltd v HMRC [2013] UKFTT 190. The FtT endorsed the views set out in Save and Prosper and Essex University. The FtT again concluded that it had jurisdiction by reference to s 43B read as whole, and by reference to the decisions of HMRC that were expressed in terms of a ‘blanket’ refusal of the application, rather than being couched in terms of a decision by HMRC not to exercise their discretion to permit an application to be granted with effect from a date earlier than that on which they received the application in question. At paragraph [126], the FtT said: “If HMRC argue that they are entitled to refuse an application on the basis solely of s 43B(4)(b), the inevitable consequence is that they must accept that the tribunal has jurisdiction pursuant to s 83(k), VATA 1994 in respect of an appeal against HMRC’s decision.”
Decision on ground three 48. As we have rejected DFUK's claim that the FtT was wrong to find that the letter of 29 September 2016 was not a valid application under s43B(2) VATA 1994, we can deal with the third ground of appeal in brief terms. 49. It was common ground that HMRC did not respond to DFUK's letter within the 90-day period which expired on 29 December 2016. If DFUK's letter of 29 September 2016 had been a valid application under s43B VATA 1994 , the prescribed statutory consequence under s43B(4)(a) and (5) would be that, in the absence of any refusal within 90 days, the application is treated as granted with effect from the day it was received by HMRC, ie 30 September 2016. The FtT concluded that, as DFGI was already a member of the DFUK VAT group at that date, DFUK's application (even if valid) could have no legal effect. 50. The FtT's conclusion appears to be based on an assumption that the DFUK's application was for DFGI to become a member of the VAT group. That is to ignore what the application was for. It was not an application for DFGI to become a member of the group, but an application to amend the date upon which it had become a member of the group. That however is immaterial to the outcome because, as the FtT had found and we agree, there was no valid application under s43B. Had there been a valid application and no refusal within 90 days, the application to backdate would have been treated as granted with effect from the date HMRC received the letter. The issue then is what does "with effect from" in s43B(4) when read with subsection (a) mean. As HMRC are able to specify that an application shall be taken to be granted from an earlier or later time under s43B(4)(b), we consider that an application to become a member of a VAT group granted under s43B(4)(a) cannot have retrospective effect because that would require HMRC to allow it to have effect from an earlier time which they can only do under s43B(4)(b). Accordingly, the deemed grant of DFUK's application (if it had been valid) when HMRC did not refuse it within 90 days would not have had the effect of backdating DFGI's membership of a VAT group but could only take effect from the date of receipt when DFGI was already a member of the VAT group.[20]The logic of the UT’s judgment above, in particular at [43], [44] and [50], is as follows. If there is no decision within 90 days, HMRC cannot refuse the application for membership under s.43B(5). That being so, there is a deemed granting of that application, and the granting must be with effect from the day on which the application is received under s.43B(4)(a). For that reason, there is no longer any extant application under s43B(2) for a subsequent decision to bite upon such as to give rise to a right of appeal. At [44], the UT observed if there was a deemed grant from 29 September 2016, then (in 2018) there was no “refusal of an application (our emphasis) such as is mentioned in s.43B(1) or (2)”. Implicitly: the later refusal to exercise discretion under s.43B(4)(b) is not per se determining an application under s.43B(2). That is why the UT then went on:
“However, Mr Rivett submitted that a refusal to exercise discretion under s43B(4)(b) is a “refusal” within s 83(1)(k) carrying a right of appeal.”
But that submission on behalf of the taxpayer, that of itself the exercise of discretion under s.43B(4)(b) carries a right of appeal, was not accepted by the UT. Rather, it upheld the FTT view that even assuming that there was a valid application, the refusal in March 2018 did not give rise to a right of appeal. In that regard, it is notable that at [46] and [47], the UT viewed both University of Essex and Copthorn Holdings as involving refusals of “the application” as a whole rather than just refusals to exercise the discretion alone.[21]Conversely, the UT indicated that the analysis would be different if there had been a refusal “of the application” (i.e. inclusive of the s.43B(2) application) within 90 days, by which point there would not have been any deemed grant. This is clearly stated at [43], and likewise was a point expressly made as regards University of Essex at [46].[22]It should also be noted that the UT’s decision on the third ground was strictly obiter, because DFUK’s appeal had been determined on the separate question of there not having been any application under s.43(1) or (2) at all, and the third ground proceeded on the premise, contrary to that finding, that there was a valid application.

Submissions of the Parties

[23]HMRC contend that there is no jurisdiction to appeal the Decision, because that Decision does not refuse an application for RNHL to be treated as a member of the Beritaz VAT Group, but rather refused the request for that membership to take effect as of 1 May 2021. HMRC submit that this follows from the legislative provisions, because s.83(1)(k) only allows for an appeal against the refusal of an application such as is mentioned in s.43B(1) or (2), and the Decision did not constitute such a refusal. HMRC also contend that the Decision was after the statutory time limit of 90 days for refusal, and so the RNHL Membership Request was already deemed granted by the time of the Decision, in reliance on Dollar Financial.[24]The Appellant makes four points in response:(1) Section 83(1)(k) provides that an appeal may be made against any refusal of an application under VATA 1994, s.43B(2) for a person to be treated as a member of a VAT group. In other words, the Appellant considers that the Decision did constitute a refusal of an application under s.43B(2), because the Appellant had applied for RNHL to be treated as a member with effect from 1 May 2021 and at least to that extent, that application had been refused.(2) Section 84(4A) supports its reading, because it relates to an appeal against a refusal on the grounds stated in s.43B(5)(c) (“that refusal of the application is necessary for the protection of the revenue”), and that is the basis of the Decision that the Appellant seeks to challenge in the present appeal.(3) In Copthorn Holdings Ltd (No. 1) v HMRC [2013] UKFTT 190, the FTT left open the question of what the jurisdiction would be in the event that HMRC did not refuse an application under s.43(2) altogether, but (as here) refused to exercise the s.43B(4)(b) jurisdiction.(4) Dollar Financial is distinct, because that case concerns a situation where there was an invalid application to amend a VAT group registration application.

Discussion

[25]The short answer to the Strike Out Application is that the logic of the UT’s decision in Dollar Financial in respect of the third ground of appeal must equally apply to the present case, given that there was no refusal of the RNHL Membership Request within 90 days.[26]The Appellant is correct to say that the factual circumstances of the present case are not the same as in Dollar Financial, because in that case, DFUK’s application was not one within s.43B(2)(a) to add a company which was not already a member of that group. But the UT’s decision on the third ground proceeded on the premise, contrary to its finding on the second ground, that there was a valid application within s.43B(2). The UT upheld the FTT’s conclusion that even if DFUK did make a valid application under s 43B VATA 1994, absent a refusal within 90 days, that application was deemed by statute as granted with effect from the date of receipt, with the consequence that a subsequent decision on the application had no legal effect and gave no right of appeal.[27]On the same logic, given that there was no decision within 90 days of the RNHL Membership Request of 8 May 2025 (by 6 August 2025), RNHL’s membership was deemed under VATA to have been granted with effect from 8 May 2025. By parity of reasoning with Dollar Financial, the subsequent Decision of HMRC of 14 August 2025 refusing retrospective commencement did not give rise to a right of appeal under s.83(1)(k), as by the time of that Decision, there already was a grant with effect from 8 May 2025.[28]Even if the UT reasoning on the third ground of Dollar Financial was strictly obiter, it is a highly persuasive authority, and I see no reason to depart from it. Its rejection of the suggestion that the exercise of s.43B(4)(b) discretion can of itself give rise to an appeal, independently of and subsequent to the outcome of the substantive application for membership, is consistent with the statutory provisions. The text of s.43B(2)(a) only refers to the application for treatment as a member of the group and says nothing about the time on which that treatment might start. Second, the s.43B(4)(b) discretion is without statutory limitation, whereas s.43B(2)(a) application can only be refused on the limited grounds specified in s.43B(5). If a request for backdating were a s.43B(2)(a) application per se, then that would mean that the refusal of that request could only be for reasons in s.43B(5), which would remove the discretion in s.43B(4)(b) entirely. Third, if a request for backdating was in itself a s.43B(2)(a) application, then that would generate uncertainty, as that would mean that a s.43B(2)(a) application could be at the same time both granted (the membership aspect) and refused (the backdating request).[29]As for Appellant’s point about s.84(4A), that does not assist the Appellant. The fact that HMRC may have refused to exercise their discretion under s.43B(4)(b) for reasons of the protection of the revenue does not undermine the UT’s reasoning in Dollar Financial. If anything, s.84(4A) underlines the distinction between a s.43B(2) application properly so called, which can only be refused for reasons in s.43B(5) and is then subject to an appeal to which s.84(4A) applies, and a request for backdating, which is subject to HMRC’s discretion and which is not limited by s.43B(5).[30]For these reasons, I conclude that the Tribunal does not have jurisdiction to consider this appeal.[31]There is potentially an open question about what the analysis would be if, within 90 days, a membership request was granted but a backdating request refused. This is the possible distinction adverted to by the Tribunal in Copthorn Holdings (No. 1) at [124] cited above (“If HMRC had said that they accepted the applications but had decided not to exercise their discretion to permit them to take effect retrospectively, the position would arguably have been markedly different.”). However this question does not arise for determination on the facts of this appeal, where there was no refusal within 90 days, and I say no more about it.

Conclusion

[32]As the Tribunal does not have jurisdiction, I strike out this appeal under rule 8(2)(a).

Right to apply for permission to appeal

[33]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 18 June 2026