Timothy Welham v The Commissioners for HMRC [2026] UKFTT 989 (TC)

[2026] UKFTT 00989 (TC)Case No TC 09937
FIRST-TIER TRIBUNAL
TAX CHAMBER
Date Judgment date: 29 June 2026
Between
MR TIMOTHY WELHAMAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondent
Location: Decided on the papers
Appeal reference: TC/2024/04900
Strike out application for lack of jurisdiction – application for strike out allowed
Decided by:
TRIBUNAL JUDGE JUDITH HARRISON
The application was determined on 22 June 2026 without a hearing on the basis of a written submission from the Respondents (“HMRC”), and a number of emails received by the Tribunal from the Appellant (“Mr Welham”).DECISION

Introduction

[1]This is the Tribunal’s decision on the application of HMRC, for these proceedings to be struck out under Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, on the grounds that the Tribunal does not have jurisdiction in relation to Mr Welham’s appeal (the "Application").[2]The issue for the Tribunal is whether Mr Welham made a valid appeal to HMRC in respect of the penalties before notifying an appeal to the Tribunal, such that the Tribunal has jurisdiction under s 49D Taxes Management Act 1970 (“TMA 1970”).

BACKGROUND

[3]On 13 September 2024 Mr Welham appealed to the Tribunal against late filing and late payment penalties charged under Schedule 55 and Schedule 56 to the Finance Act 2009. a) £100 initial late filing penalty for the tax year ending 5 April 2013 b) £86 thirty day late payment penalty for the tax year ending 5 April 2013 c) £86 six month late payment penalty for the tax year ending 5 April 2013 d) £86 twelve month late filing penalty for the tax year ending 5 April 2013 e) £76 thirty day late payment penalty for the tax year ending 5 April 2014 f) £43 six month late payment penalty for the tax year ending 5 April 2014 g) £43 twelve month late filing penalty for the tax year ending 5 April 2014 h) £87 thirty day late payment penalty for the tax year ending 5 April 2015 i) £87 six month late payment penalty for the tax year ending 5 April 2015 j) £87 twelve month late filing penalty for the tax year ending 5 April 2015[4]The Notice of Appeal enclosed a letter from HMRC dated 15 August 2024 which was responding to letters sent by Mr Welham in November 2023 and January 2024. This letter states that:
“I have reviewed your full tax affairs going back to 2012-2013 and can see that interest and penalties have been charged correctly. I cannot see that you have made an appeal against the late payment penalties or objected to the interest charges other than the late filing penalties for 2016-2017.”
[5]The 15 August 2024 letter then set out the position by year and said “I hope I have now clarified the position for you and you agree your UK tax affairs are now finalised.” This letter did not contain any explanation of Mr Welham’s appeal rights.[6]From the wording of the 15 August 2024 letter, the Tribunal infers that HMRC had previously taken decisions as to Mr Welham’s tax position for the years ending April 2013, April 2014 and April 2015.[7]On 30 October 2024, HMRC wrote to Mr Welham to inform him that he needed first to appeal to HMRC in writing before the Tribunal could entertain an appeal made to them.[8]HMRC applied for a strike out on 30 October 2024, on the basis that as Mr Welham had not first appealed to HMRC, under the terms of section 49D TMA 1970, the Tribunal has no jurisdiction to consider the matter.[9]Mr Welham replied to HMRC on 30 October 2024 that:
‘I have been appealing against these since 2013’ and ‘I was unaware that I owed any money as I had agreed to pay back the principal previously and had many calls with HMRC regarding this over the years as you can imagine this was a great shock as this was historical.’
He also stated ‘I am adamant that I do not owe the penalties /interest /fines that make up this figure .’[10]The letter to HMRC covered many matters from 2017 onwards which are not relevant to this appeal which is in relation to the tax years ending 5 April 2013, 2014 and 2015.[11]The Tribunal wrote to Mr Welham on 1 March 2025, explaining that HMRC had no record of an appeal to them in respect of the penalties, and drawing the relevant legislation to the attention of Mr Welham. In particular, the email stated ‘You stated that you have appealed the decisions and you have done so prior your appeal to the Tribunal, however you have not provided any evidence to support that with your submission or subsequent correspondence. I must stress that the Tribunal is a creature of statute, and unless the decision was appealed to HMRC first, it will have no jurisdiction to consider the penalty assessments and is obliged to strike out the appeal from the proceedings – See Rule 8 of Tax Chamber Rules 2009 - updated November 2022 (judiciary.uk)- https://www.judiciary.uk/wp-content/uploads/2023/02/Consolidated-FtT-Tax-Chamber-Rules_2011.11.01.pdf. HMRC have written to you directly and explained that even if you have not appealed the decisions until now ,you can still do so by submitting your appeal in writing in the post or via the online portal - https://www.gov.uk/tax-appeals/penalty .If HMRC then refuse to admit the appeal because they are unable to accept that you had a reasonable excuse for the lateness, then you have the option to seek permission from the Tribunal for your late appeal to HMRC to be allowed to proceed.[12]The Tribunal directed Mr Welham to reply within 21 days and provide evidence of the prior appeal submissions to HMRC, with various specified details to be provided.[13]No response was received to this letter, so the Tribunal issued an “unless order” on 18 August 2025, saying that unless Mr Welham responded to the 1 March 2025 letter, his appeal would be struck out.[14]Mr Welham responded on 12 August 2025 saying that he had appealed to HMRC but that he did not have a copy or record of those appeals.[15]On 22 September 2025, the Tribunal directed HMRC to provide two letters (dated November 2023 and January 2024) sent by Mr Welham to HMRC. These are the letters that HMRC responded to on 15 August 2024. Also on 22 September 2025, the Tribunal directed Mr Welham to provide any evidence he had regarding the penalties.[16]On 22 September 2025, Mr Welham sent the Tribunal copies of two letters that are both undated. The evidence does not establish to whom these letters were sent. One of these letters contains the Tribunal case reference for this appeal, so must have been written after the date of the appeal.[17]On 23 September 2025, HMRC wrote to the Tribunal confirming that they had not received an appeal by Mr Welham for the tax years ending April 2013 to April 2025. HMRC enclosed a copy of the letter dated 15 August 2024. They did not include (or mention in their letter) Mr Welham’s letters of November 2023 or January 2024.[18]Given that neither party had adequately complied with the 22 September 2025 directions, the Tribunal directed Mr Welham to provide any other relevant correspondence he might have and HMRC to provide the November 2023 and January 2024 letters within 14 days.[19]On 26 March 2026, HMRC sent two letters to the Tribunal which HMRC told the Tribunal were the November 2023 and the January 2024 letters. The Tribunal notes that the first letter is undated, and the second letter is dated 12 January 2025 (however it encloses a copy of Mr Welham’s self-assessment summary which appears to have been printed on 12 January 2024). Given that HMRC has told the Tribunal these letters were sent to it in November 2023 and January 2024. The Tribunal accepts HMRC’s evidence as to the dates of the letters, notwithstanding the apparent typographical inconsistency.[20]On 6 April 2026, Mr Welham sent the Tribunal an email with a letter attached explaining the position.

THE LAW

[21]The law relating to the making of an appeal is contained within s31A, TMA 1970. “31A Appeals: notice of appeal (1)Notice of an appeal under section 31 of this Act must be given— (a)in writing, (b)within 30 days after the specified date, (c)to the relevant officer of the Board. (2)In relation to an appeal under section 31(1)(a) or (c) of this Act— (a)the specified date is the date on which the notice of amendment was issued, and (b)the relevant officer of the Board is the officer by whom the notice of amendment was given. (3)In relation to an appeal under section 31(1)(b) of this Act— (a)the specified date is the date on which the closure notice was issued, and (b)the relevant officer of the Board is the officer by whom the closure notice was given. (4)In relation to an appeal under section 31(1)(d) of this Act (other than an appeal against a simple assessment)— (a)the specified date is the date on which the notice of assessment was issued, and (b)the relevant officer of the Board is the officer by whom the notice of assessment was given. (4A)In relation to an appeal under section 31(1)(d) against a simple assessment— (a)the specified date is the date on which the person concerned is given notice under section 31AA of the final response to the query the person is required by section 31(3A) to make, and (b)the relevant officer of the Board is the officer by whom the notice of assessment was given. (5)The notice of appeal must specify the grounds of appeal.”[22]A valid notice of appeal must, in substance, communicate to HMRC that the taxpayer disagrees with an appealable decision and wishes to challenge it. It must identify (expressly or implicitly) the decision being appealed and the grounds of that challenge.[23]S49D TMA 1970 gives the jurisdiction of the Tribunal in this matter. “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. (3)If the appellant notifies the appeal to the tribunal, the tribunal is to decide the matter in question. (4)Subsections (2) and (3) do not apply in a case where— (a)HMRC have given a notification of their view of the matter in question under section 49B, or (b)HMRC have given a notification under section 49C in relation to the matter in question. (5)In a case falling within subsection (4)(a) or (b), the appellant may notify the appeal to the tribunal, but only if permitted to do so by section 49G or 49H.”[24]The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (as amended) state, in Rule 8:
“8.... (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) 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.”

FINDINGS OF FACT

[25]The Tribunal finds that none of the letters provided to it show that Mr Welham has appealed the penalties to HMRC before he appealed to the Tribunal on 13 September 2024.[26]The Tribunal was provided with two letters by HMRC on 26 March 2026 which the Tribunal finds were sent by Mr Welham to HMRC in November 2023 and January 2024 (so before the appeal was made).[27]The first letter (which is undated, but the Tribunal finds was sent by Mr Welham in November 2023) states:
“I am writing to you to ask for a refund of my penalties and interest charges on my SA account from 05/04/2013 to date. I have previously written and called you about this many times as I had been struggling to pay and agreed with you in 2017 these would be wiped so I could focus on the tax debt. ---- these charges and interest penalties should have been removed.” these charges and interest penalties should have been removed.”
[28]The second letter (which is dated 12 January 2025, but which the Tribunal finds was sent in January 2024) states that:
“I previously wrote to you last autumn … but I have not heard from you. Going back several years I agreed a deal with you to wipe the penalties and interest from my SA account … Please could you repay me the fines and penalty as shown and as agreed.”
Please could you repay me the fines and penalty as shown and as agreed.”[29]Having reviewed these letters in their entirety, the Tribunal finds that that they do not evidence that Mr Welham gave a notice of appeal under section 31A TMA 1970. The Tribunal finds that the letters are framed as requests for remission or repayment, not as notices of appeal against specified penalty decisions. This is because these letters do not mention that Mr Welham is appealing, do not identify the decision being appealed or identify specific assessments that are being appealed, and are worded as a discretionary request to HMRC to remove or repay the penalties.[30]The Tribunal was also provided with two undated letters by Mr Welham on 22 September 2025. These letters do not state who they were sent to, and Mr Welham has not told us they were sent to HMRC.[31]One of these letters contains the Tribunal’s appeal reference so must have been written after Mr Welham appealed to the Tribunal. As such, that letter is not evidence that Mr Welham appealed to HMRC before he appealed to the Tribunal.[32]The second letter states:
“I strongly disagree with this decision and would like my money paid back to me. Firstly many years ago you agreed to wipe the charges also the over payments on my tax 19/20. … Please can you pay this back into my account on file.”
Please can you pay this back into my account on file.”[33]Even if the Tribunal assumes in Mr Welham’s favour that this letter was sent to HMRC and relates to the relevant periods, it still does not amount to a notice of appeal, the Tribunal finds that the letter is not evidence that Mr Welham notified HMRC that he was appealing to the Tribunal. The Tribunal finds that this letter is a request for repayment, not a notice of appeal against specified penalty decisions. This is because this letter does not mention that Mr Welham is appealing, does not identify the decision being appealed or identify specific assessments that are being appealed, and is worded as a discretionary request to HMRC to repay certain amounts.[34]The Tribunal has considered whether, taking a substance over form approach, the three letters referred to above could nevertheless amount to a notice of appeal. The Tribunal finds that it does not, because the communications are requests for discretionary relief and do not convey an intention to challenge specified penalty decisions.[35]As a result, the Tribunal accepts that no appeal was made or notified to HMRC by Mr Welham in respect of these penalties. To the extent there is any ambiguity in the correspondence, the burden lies on Mr Welham to demonstrate that a valid appeal was made. The Tribunal finds that this burden has not been discharged. The letters do not identify, even broadly, the particular penalty assessments being challenged, nor do they distinguish between different tax years or types of penalties.[36]Mr Welham was given multiple opportunities to provide evidence of an appeal to HMRC, including detailed directions and an unless order, but failed to produce such evidence.

DECISION

[37]Having considered all of the evidence, the Tribunal finds that Mr Welham did not give a valid notice of appeal to HMRC under section 31A TMA 1970.[38]The Tribunal accepts that no particular formality is required for a notice of appeal. However, the communication must still convey, in substance, that an appeal is being made against an identifiable decision. That threshold is not met here.[39]The Tribunal notes that the letter dated 15 August 2024 did not contain information about appeal rights. However, this does not affect the requirement that an appeal must first be made to HMRC before the Tribunal can have jurisdiction. The Tribunal is satisfied that Mr Welham has been given a fair opportunity to establish jurisdiction.[40]The Tribunal has considered whether Mr Welham’s correspondence could, in substance, amount to such a notice of appeal. It finds that it does not. The communications are requests for repayment or remission of penalties and interest, do not identify the specific decisions being challenged, and do not set out any grounds of appeal. They do not convey, expressly or implicitly, an intention to appeal against penalty assessments. As a result, the Tribunal characterises this correspondence as comprising requests for amounts not to be charged or repaid, rather than challenges to legal liability.[41]Even taking Mr Welham’s case at its highest, including assuming that the undated correspondence was sent to HMRC in relation to the relevant periods, the Tribunal finds that it does not amount to a valid notice of appeal.[42]In the absence of a valid notice of appeal to HMRC, the condition in section 49D(1) TMA 1970 is not satisfied. The Tribunal therefore has no jurisdiction to determine the appeal. Compliance with section 31A is a prerequisite to the operation of section 49D. In the absence of a valid notice of appeal to HMRC, no appeal can be notified to the Tribunal, and the Tribunal’s jurisdiction is not engaged.[43]Accordingly, Rule 8(2), Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 requires the Tribunal to strike out the proceedings.[44]The Tribunal has also considered whether it has any power to treat these proceedings as an application in relation to a late appeal to HMRC or to direct such an appeal. It does not do so because no appeal (in form or substance) has been made to HMRC from which such a jurisdiction could arise. This is consistent with section 31A(5) TMA 1970, which requires a notice of appeal to specify the grounds of appeal.[45]The appeal is therefore STRUCK OUT.

Right to apply for permission to appeal

[46]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: 29 June 2026