Tax Litigation and Appeals to the Tax Tribunal

Speaker: Hammad Baig
Chambers: 33 Bedford Row

Hammad Baig
33 Bedford Row
Tax Litigation and Appeals to the Tax Tribunal

This seminar will cover

Do You Have an
Appealable Decision?
Before you can appeal, HMRC must have made a decision.
This may seem obvious, but it is the starting point.
One cannot appeal during the inquiry stage. One has to wait until HMRC conclude their inquiry and issue a decision.

Seeking an Internal Review
or Appealing to the FTT
The next step is to appeal the decision. In the case of direct taxes, the appeal lies to HMRC within 30 days. HMRC can only accept a late appeal if the taxpayer has:
• a reasonable excuse, and
• has made the appeal without unreasonable delay after the excuse has ceased
If the time limit is missed, you will need to ask the tribunal for permission to appeal.

Taxpayer Review
If the taxpayer wants a review:
• appeal to HMRC
• review by HMRC, and
• notify the appeal to the tribunal.

If the taxpayer does not want a review:
• appeal to HMRC, and
• notify the appeal to the tribunal.

The UT has recently given guidance to the FTT on how to decide late appeals in Martland, saying that the starting point is to follow the three stage process set out by the Court of Appeal in Denton.
‘The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1)…’

‘…If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case so as to enable [the court] to deal justly with the application including [factors (a) and (b)].’

Taxpayer Review
If the taxpayer wants a review:
• appeal to HMRC
• review by HMRC, and
• notify the appeal to the tribunal.

Taxpayer Review
If the taxpayer does not want a review:
• appeal to HMRC, and
• notify the appeal to the tribunal.

Preparing for an Internal Review
It is advised to seek an internal HMRC review before you head off to the tribunal. A senior HMRC officer who has no prior involvement in the case will independently review the facts and the decision.
A review gives your client the opportunity to air his arguments before he approaches the tribunal. It can have the effect of giving your client a second bite at the cherry.

A request for an internal review must be carefully drafted taking in to account the full gambit of tax provisions. Anything that is said in the review request can be relied upon by HMRC and the tribunal during a tribunal hearing.

Appeal Form
You must submit the appeal form to the Tribunals Service within the time limit.

A taxpayer is not required to pay a fee to take an appeal to the First-tier Tax Tribunal (FTT) or to the Upper Tribunal (UT).

The application to appeal can be made online via the gov.uk website. You must include a scan or photo of the original notice or review conclusion letter with the application. However, if you prefer to appeal using a paper appeal form, this can be downloaded from the gov.uk website.

The Upper Tribunal
In order to appeal to the upper tribunal, your client will require permission appeal to the upper tribunal. The following scenarios may arise:
• your client lost its case before the FTT and the FTT has given permission for it to appeal to the UT.
• your client lost its case before the FTT; the FTT refused permission to appeal to the UT, but the UT subsequently gave permission, or
• your client won its case before the FTT and HMRC has received permission to appeal to the UT in a tax matter.
Procedural Mishap
• Service of a summons
• Application for adjournment
• Regulation 32a
• Liability order
• Non receipt
• Timings

Non Attendance
• Adjournment
• Prompt meritorious application
• Date of application
• Start date

Hamden
• Action within days
• 21 days to appeal

CPR 39.3 and Three Part Test
• Reasonable prospect of success
• Good reason for not attending trial
• Act promptly
• No Orders for costs

© Copyright 2020 Law Friends Society. All Rights Reserved