Tax Tribunal Representation 

This guide aims to help you understand the basics of appealing your closure notice, Revenue determination or other tax or penalty assessment from HMRC in a tax tribunal appeal.

First-Tier Tax Tribunal Representation 

The First-tier Tax Tribunal, or FTT, is normally the first port of call when you have notified HMRC of your tax appeal, and they have indicated that they do not agree with your grounds of appeal and want you to pay the tax or penalty assessed.

You need to appeal any closure notice or tax or penalty assessment to HMRC in writing within 30 days if you wish to challenge it and state the grounds for your appeal. HMRC will then normally let you have their current view of the matter and ask whether you would like the dispute reviewed internally by another officer.

Most taxpayers accept such an offer and this review can take several months. Unless that review overturns HMRC’s original view you will then have 30 days from receipt of the internal review to notify your appeal to the FTT using the form at this link.

Because your stated grounds of appeal will normally define the future scope of your appeal and restrict the issues that you can argue in front of the FTT, it is a good idea to hire a First-tier Tax Tribunal barrister to prepare them for you not only in the notice of appeal to HMRC but also later on in the form notifying your appeal to the FTT. This should ensure that you capture the important issues on which your appeal is based and give HMRC and the FTT a clear understanding of the scope of your appeal and the reasons why you are challenging HMRC. It is important to keep in mind that in tax appeals, it is for the taxpayer to show that HMRC is wrong and not the other way around.

Patrick Cannon is a tax tribunal barrister who has extensive experience in advising on and representing taxpayers at FTT hearings and can advise you on the merits of any particular tax dispute and in dealing with HMRC and the FTT if a tax appeal is required.

Upper Tax Tribunal Representation

The Upper Tribunal of the Tax and Chancery Chamber (to give it its full name) hears appeals from decisions of the FTT. The judges of the Upper Tribunal are generally more senior and experienced than the judges of the FTT. If permission to appeal is given, they will review a decision of the FTT to decide whether the FTT judge made an error of law of sufficient seriousness that means the FTT decision should be set aside and either sent back to the FTT for a re-hearing or remade by the Upper Tribunal itself. Aside from an error of law, the Upper Tribunal may also intervene on appeal if the FTT judge acted irrationally, in the judicial sense of arriving at conclusions on the facts of the case that no sensible judge could have reached on the evidence they found.

It’s important to understand that appeals to the Upper Tribunal are not allowed as of right and that such appeals are not a second bite of the cherry. The FTT hearing is “the first and only night of the show”. To appeal to the Upper Tribunal, you need either the permission of the FTT (normally, this will be from the judge who heard the appeal) or if you are refused permission by the FTT, you can reapply for permission from the Upper Tribunal itself.

If permission to appeal is granted, the Upper Tribunal will only allow an appeal to succeed if 

it can be shown that the FTT either made an error of law or reached an irrational view of the facts. A recent example of the scope of the Upper Tribunal’s approach to an appeal can be found in paragraphs 110 and 11 of the Court of Appeal’s decision in Lidl Great Britain and Anor v Tesco Stores Ltd and Anor CA-2023-001115/001117/001290 (19 March 2024)

It is also important to understand that unlike the FTT, where normally each side bears their own costs of representation win or lose, in the Upper Tribunal the normal rule is that the loser pays the winner’s legal costs and the costs can be considerable with the typical costs of HMRC for a one day’s hearing including preparation being anywhere between £20,000 and £50,000 depending on the case.

Patrick Cannon provides tax tribunal representation and has extensive experience of representing taxpayers before the Upper Tribunal in tax appeals and at this level, professional expertise really is a must unless you are already have experience of such appeals, have run out of money or are feeling particularly heroic.

A further appeal to the Court of Appeal from the Upper Tribunal remains a possibility but it will be necessary to show that the Upper Tribunal made an error of law or that the point is a matter of public importance.

Late Appeals to the Tax Tribunal

Your appeal should be notified to the FTT within 30 days of HMRC’s final decision using this form. If you are late (and a surprising number of taxpayers do file late), you can still notify your appeal to the FTT but you will need to indicate this on the form and explain your reasons. The FTT will then proceed with the appeal process but may ask HMRC whether they object and if so, schedule a hearing to decide whether to assume jurisdiction and permit the appeal to proceed. If the delay is only short then HMRC will not usually object.

It goes without saying that you should file your appeal within the 30 days allowed to avoid the chance of an HMRC objection but if you are late and HMRC object, then Patrick Cannon has extensive experience in representing taxpayers at FTT hearings to decide whether a late appeal should be allowed to proceed (or whether HMRC’s failure to abide by time limits should lead to their defence of an appeal being struck out). An example of this type of hearing can be seen here.

What is the tax tribunal process?

The tax tribunal process starts with you notifying your appeal to the FTT. The FTT will then normally direct that HMRC produce a statement of case describing what the appeal is about and their reasons for opposing the taxpayer’s appeal, within 60 days of the direction. Once this has been produced the FTT will issue detailed directions for progressing your appeal to a hearing including a requirement for each side to produce a list of the documents on which they intend to rely, who is to prepare the PDF hearing bundle of documents and relevant case law and statutory authorities, provision for witness statements, listing information for the hearing and if, and when, each side must produce and exchange a written summary of their arguments for the hearing (skeleton arguments). The FTT will, in due course, set a hearing date and decide whether the hearing will be in person at one of its tribunal centres or by video. The rules of procedure governing the FTT can be reviewed here.

Who drafts witness statements at the tax tribunal?

It is normally sensible to have as much witness evidence as possible relevant to the facts underlying any tax appeal in order to prove those facts to the FTT and not simply rely on an assertion by the taxpayer’s representative. In Patrick Cannon’s experience, it is almost always very helpful to produce the important witnesses and examine (i.e., question) them in person or by video because this helps the judge to understand the facts better and to ask any questions about matters they are unsure of. The judge can also gain a better understanding of how reliable the witness’s evidence is by seeing and hearing them rather than having to rely on a written statement.

The witness statement should be prepared by the witnesses themselves in their own words, and they should not be coached or rehearsed. It is quite ok for a solicitor or other agent to review the draft statement and comment, for example to suggest that irrelevant material be excluded or that greater or lesser emphasis should be applied to focus the statement more on the points in issue. However, words must not be put into the witness’s mouth, and the final statement must honestly reflect the witness’s own story so that they can, when asked, confirm the veracity of their statement.

What will the witness statement contain?

The witness statement in a tax tribunal appeal should contain the witness’s personal understanding and perception of the facts relevant to the tax appeal. The witness statement should, wherever possible, avoid hearsay evidence (that is, that someone else said so and so to be the case) and stick to matters within their direct experience, and it should avoid giving opinion evidence.

Witnesses normally find it difficult not to give opinion evidence (e.g., that the tax technical conditions for tax relief have been met so that the tax relief should be granted and the appeal succeed) but this should be resisted because it is for the FTT to decide such matters and any opinion evidence from the witness will be ignored by the judge. The witness is there to assist the FTT to reach its own conclusions on the facts and not to help the judge decide the law.

Expertise with tax appeals is vital

You will be reading this because you have a tax dispute with HMRC that you or a client are considering appealing to the tax tribunal or you are researching the possibility of doing so. It would be a shame to fall at this stage for want of experienced professional representation and for HMRC’s experienced litigators or the tribunal itself to point to errors in the way in which your appeal is argued and presented that an experienced tax barrister could have helped you to avoid. Contact Patrick Cannon if you wish to explore whether he should represent you in a tax appeal.