Permission to Make a Late Tax Appeal Against HMRC Assessments and Penalties Refused by Tribunal

Neutral Citation: [2026] UKFTT 00998 (TC) Case Number: TC 09943 FIRST-TIER TRIBUNAL TAX CHAMBER [Taylor House and remote video hearing] Appeal reference: TC/2024/04652 PROCEDURE – late appeal against Assessments raised under s 29 of the Taxes Management Act 1970 and Penalties issued under Schedule 24 of the Finance Act 2007 and Schedule 55 of the Finance Act 2009 and Schedule 41 of the Finance Act 2008 – Code of Practice (COP) 9 investigation – Martland three stage test confirmed – serious and significant delay – alleged failings by representatives and/or lack of representation – HMRC v Katib & Ors considered – no good reason – Application refused Heard on: 29 January & 21 April 2026 Judgment date: 02 July 2026 Before JUDGE NATSAI MANYARARA LESLIE HOWARD Between [APPELLANT] Appellant and THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS Respondents Representation: For the Appellant: Ms Morag Ofili of Counsel, Edwin Coe LLP For the Respondents: Ms Lucy Lawrence, Litigator of HM Revenue and Customs’ Solicitor’s Office DECISION Introduction 1. The Appellant ([APPELLANT]) seeks permission to make a late appeal against Assessments, raised on 23 March 2022 (“ the Assessments ”). The Assessments are in the sum of £458,047.80 and relate to the 2009-10 to 2019-20 (inclusive) tax years.

2. The Appellant further seeks permission to make a late appeal against penalties issued on 28 June 2022 (“ the Penalties ”), as follows: (1) Schedule 24 of the Finance Act 2007 (“ Schedule 24 ”), relating to the 2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2015-16 and 2016-17 tax years; (2) Schedule 55 of the Finance Act 2009 (“ Schedule 55 ”), relating to the 2014-15 tax year; and (3) Schedule 41 of Finance Act 2008 (“ Schedule 41 ”), relating to the 2017-18, 2018-19 and 2019-20 tax years.

3. T he Penalties are in the sum of £197,867.32.

4. The underlying tax dispute concerns a “Code of Practice 9” (“ COP9 ”) investigation in relation to under-declared rental income by the Appellant. Income from the exploitation of land owned by a taxpayer is considered as “property income”, and is taxed as non-savings income. The property income may be generated from the letting of land or buildings, or may be from other diverse sources. Strictly, the person due to pay the tax is “ the person receiving or entitled to receive the profits ”.

5. We are not concerned with the underlying tax dispute in these proceedings but merely refer to it by way of background 6. The Appellant’s father, [NAME], purchased a farm site. Over time, the Appellant’s father built units on the land, and rented them out to local people and businesses. The Appellant’s father also had properties on the land, which he rented out. The rental business continues to run from the site. The Appellant utilised an area of the land to derive income from container storage rental. In 2013, the Appellant’s mother passed away, and his father’s health began to deteriorate, The Appellant’s father later, unfortunately, began to suffer from dementia. On 30 January 2019, the Appellant was granted Power of Attorney to deal with matters on his father’s behalf. The Appellant continued to take the lead on running the business until July 2022. The Appellant’s father, unfortunately, passed away in 2023. The rental income arose as follows: Tax Year Revised Turnover Total revised net profit Profit on which tax and NICs due Rental Income 2010 £2,100 2011 £8,400 2012 £8,400 2013 £8,400 2014 £368,139.60 £201,372.36 £100,686.18 £8,400 2015 £388,591.80 £212,559.71 £106,279.86 £8,400 2016 £409,044.00 £223,747.07 £111,873.53 £8,400 2017 £423,440.00 £231,621.68 £115,810.84 £8,400 2018 £437,680.00 £239,410.96 £239,410.96 £8,400 2019 £450,981.00 £246,686.61 £246,686.61 £8,400 2020 £457,866.00 £250,452.70 £250,452.70 £8,400 7. The tax due was as follows: Tax Year National Insurance and Capital Gains due 2010 £420.00 2011 £1,680.00 2012 £1,680.00 2013 £1,680.00 2014 £34,332.67 2015 £42,774.29 2016 £46,045.61 2017 £47,884.80 2018 £104,517.94 2019 £107,808.76 2020 £109,215.56 Total £498,039.63 8. When raising the Assessments, the income that the Appellant received from the rental business with his father (following the death of his mother in 2013) was based on the most complete year for which records and documents were available (2015-16). From 2016-17, the Retail Price Index (‘RPI’) was used. The profits of the property business were split equally between the Appellant and his father for the years 2013-14 to 2016-17. The profits from 2017-18 to 2019-20 were attributed solely to the Appellant as his father’s health deteriorated.

9. The Appellant’s appeal to HMRC (made on 18 April 2024), under s 31 A of the Taxes Management Act 1970 (“ TMA ”), against the Assessments and Penalties was made outside of the statutory deadline for appealing. The Appellant’s appeal to the Tribunal (on 27 August 2024) was also made outside of the statutory deadline for appealing. HMRC have refused consent under s 49(2)(a) TMA.

10. The initial hearing, on 29 January 2026, was a face-to-face hearing. The resumed hearing, on 21 April, was a remote hearing. With the consent of the parties, the form of the resumed hearing was V (video). Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely in order to observe the proceedings. As such, the hearing was held in public.

11. Having carefully considered the evidence, and the submissions made by both parties, we decided to refuse this application. In this Decision, the legislation and case law are cited so far as is relevant to the issues in dispute. The authorities and the documents 12. The authorities to which we were specifically referred by the parties included: (1) Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 (‘ Denton ’); (2) HMRC v Katib [2019] UKUT 189 (TCC) , [2019] STC 2106 (‘ Katib ’); (3) Medpro Healthcare Ltd & Anor v HMRC [2025] UKUT 255 (TCC) , [2025] STC 1343 (‘ Medpro UT ’); (4) Romasave (Property Services) Ltd v HMRC [2015] UKUT 254 (TCC) , [2016] STC 1 (‘ Romasave ’); (5) Uddin & Kazitula Ltd (in liquidation) v R & C Comrs [2023] UKUT 99 (TCC) (‘ Uddin ’); and (6) William Martland v HMRC [2018] UKUT 0178 (TCC) (“ Martland ”); (7) Lands Luo Limited v HMRC [2025] UKFTT 01207 (TC) (‘ Lands Luo’ ); and (8) Green v HMRC [2022] UKFTT 405 (TC) (‘ Green ’);

13. The documents to which we were referred included: (i) the Document Bundle consisting of 254 pages; (ii) the Supplementary Witness Exhibits Bundle consisting of 55 pages; (iii) the Appellant’s Supplementary Bundle consisting of 35 pages; (iv) Officer Linda Bingham’s supplementary witness statement dated 9 January 2026 (and exhibits); (v) bookkeeper [NAME]’s witness statement dated 11 January 2025; (vi) HMRC’s Skeleton Argument dated 15 January 2026; and (vii) the Appellant’s Skeleton Argument dated 16 January 2026. Issue(s)

14. This appeal was originally listed to be heard at a time when the Court of Appeal was considering the correct approach to delay and relief from sanctions in HMRC v Medpro & Ors [2026] EWCA Civ 14 (‘ Medpro CoA ’). At that time, the parties stated that the issues to be determined were: (1) whether the Martland/Denton or Medpro UT approach is to be followed by the First-tier Tribunal (‘FtT’) in determining the application for permission to make a late appeal; in particular, ‘Stage 3’ of the Martland test (and the factors considered in Denton ) (‘Issue 1’); (2) the relevance of the observations made by Presidential panel in Lands Luo as a result of the conflicting decisions from the Upper Tribunal (‘UT’) (‘Issue 2’); and (3) the relevance of Appellant’s reliance on [NAME] in contributing to the delay in making an appeal (‘Issue 3’).

15. In light of the Court of Appeal’s decision in Medpro CoA , the sole issue for determination is now whether the Appellant has provided a good reason for the late appeal. This necessitates applying the Martland three-stage approach. Since the date of the hearing, the Supreme Court has confirmed the Martland test by refusing permission to appeal against the decision of the Court of Appeal in Medpro CoA . Background facts 16. On 26 February 2020, correspondence was sent to the Appellant as HMRC had reason to suspect that he had committed tax fraud in relation to the rental income received. A copy of this correspondence was sent to the Appellant’s agent, Pemberton Professionals Limited (“ Pemberton ”).

17. A COP9 investigation then commenced. Under the COP9 code, taxpayers are offered the chance to make a ‘disclosure’ under a contractual arrangement. The Appellant was offered the chance to make a full disclosure under a contractual arrangement, known as a “Contractual disclosure Facility” (“ CDF ”).

18. The CDF requires an individual to: (1) provide a valid outline disclosure of the conduct that brought about a loss of tax (“ the Outline Disclosure ”); and (2) provide a certified statement of full, complete and accurate disclosure of all tax irregularities, together with certified statements of assets/liabilities, bank accounts and credit cards (“ the Formal Disclosure ”).

19. If a full disclosure is made, HMRC will not pursue a criminal investigation with a view to prosecution.

20. On 11 June 2020, Officer Linda Bingham (of HMRC) wrote to the Appellant in the following terms: “ Contractual Disclosure Facility (CDF) – Offer period expired and you have not replied This letter contains important information about the CDF. Please read it carefully. I wrote to you on 26 February 2020 to formally offer you the opportunity to enter into a CDF with HMRC. My letter told you that our offer would expire 60 days after you received it. The offer period has now expired and I have not received a reply from you. As I have not received a reply to our CDF offer, HMRC is not bound by the terms of the contract. What will happen next I will now investigate the tax fraud that we suspect you have committed. This may be a criminal investigation with a view to prosecution. Code of Practice 9, which I sent to you with my original offer, explains what I will do next. I will contact you by 30 June 2020 to tell you how our investigation will proceed. If there’s anything about your health or personal circumstances that may make it difficult for you to deal with this investigation, please tell me so that I can help you in the most appropriate way .” [Emphasis added]

21. A copy of this letter was sent to Pemberton.

22. On 3 July 2020, [NAME] contacted HMRC advising that she was a newly appointed bookkeeper who was gathering information for the purposes of the investigation. [NAME] was informed that case specifics could not be discussed with her unless a “64-8 authority” was in place.

23. On 15 July 2020, an email was received from [NAME], together with a signed 64-8.

24. On 16 July 2020, Pemberton contacted Officer Bingham and confirmed that [NAME] was working with them.

25. On 9 November 2020, additional information was requested from the Appellant by HMRC.

26. On 12 February 2021, Pemberton responded to the request for additional information.

27. On 15 September 2021, following a check of the Self-Assessment (“ SA ”) system, Officer Bingham noted that Pemberton were no longer shown as the agent.

28. On 17 September 2021, the Appellant signed a “ COMP1 ” form (temporary authorisation for compliance checks) authorising HMRC to deal with [NAME] during the enquiry.

29. On 17 September 2021, Officer Bingham drafted a telephone note of a conversation with [NAME] (“ the September 2021 telephone note ”).

30. On 17 December 2021, proposals on how the investigation would be progressed, and the proposed division of profits from the rental business, were issued to the Appellant . The proposals were based on the division of profits, as per the returns submitted by the Appellant. A copy of this letter was emailed to [NAME] on the same date. Any counter-argument was to be received by 22 January 2022.

31. On 16 February 2022, a meeting (“ the settlement meeting ”) was held between the Appellant, his sister ([NAME]) and [NAME]. During that meeting, the Appellant confirmed that he: (1) was happy with how the investigation was concluded; (2) was satisfied with the figures; (3) knew what was outstanding; and (4) had taken on board the points about the current business.

32. On 23 March 2022, HMRC raised the Assessments in relation to the 2009-10 to 2019-20 (inclusive) tax years, as no payment had been received from the Appellant.

33. On 25 April 2022, Officer Bingham contacted [NAME] and re-iterated that the Assessments were in place, and that the next action would be collection of the debt.

34. On 20 June 2022, a telephone call was held between [NAME] and Officer Bingham (“ the June 2022 telephone call ”). [NAME] stated that the Appellant could make payments of £33,000 on the third of every month, towards the Assessments.

35. On 28 June 2022, HMRC issued the Penalties, for the same period as the Assessments.

36. On 29 June 2022, [NAME] stated that she would pass on the information to the Appellant and Pemberton.

37. In January 2023, the Appellant’s father unfortunately passed away.

38. In November 2023, the Appellant received a letter regarding bankruptcy proceedings. [NAME] then referred him to an insolvency specialist known as “SPW UK LLP” (“ SPW ”).

39. On 28 February 2024, the Appellant wrote to HMRC requesting that the enquiry be re-opened.

40. On 14 March 2024, HMRC confirmed that the Assessments were final and conclusive.

41. On 18 April 2024, the Appellant made a late appeal to HMRC in respect of the Assessments and the Penalties.

42. On 25 April 2024, HMRC refused to accept the late appeal.

43. On 14 May 2024, SPW provided further details for HMRC to consider.

44. On 22 May 2024, HMRC again advised that the late appeal was not accepted, and provided information on applying to the Tribunal Service.

45. On 29 July 2024, SPW contacted HMRC seeking permission to apply to the FtT for a late appeal. SPW noted that the Appellant was to be undergoing bankruptcy proceedings in September 2024.

46. On 30 July 2024, HMRC advised that they had already responded in their letter of 22 May 2024.

47. On 27 August 2024, SPW applied to the FtT for permission to make a late appeal. The Grounds of Appeal stated that: “ We are making a late appeal on the grounds that we have been appointed recently as Mr [APPELLANT]’s tax representative .” 48. On 8 January 2025, HMRC made an application for “Further and Better Particulars” from the Appellant. Specifically, HMRC requested directions that amended Grounds of Appeal should detail the reasons why: (1) the Appellant did not appeal to HMRC within the 30-day statutory time-limit; (2) it took one year, eleven months and 27 days to appeal to HMRC; and (3) it took a further three months and five days to apply to the FtT, after receiving HMRC’s letter of 22 May 2024.

49. HMRC added that the reason(s) should include: (1) specific dates as to when any excuse started and subsequently ended; (2) evidence in support; and (3) how any reason(s) affected the Appellant’s ability to appeal.

50. On 19 February 2025, SPW provided a response to HMRC, in the following terms: “ The appellant did not have professional advisers to deal with this very serious Enquiry. It was for this reason that no appeals were made in good time. It would surely not be equitable to [APPELLANT] to have a liability imposed on him for technical reasons. It is plainly for this reason that the Appellant needs HMRC to open the assessments for all the relevant years. The Appellant took professional advice when he was confronted with a potential Bankruptcy outcome . It is patently clear that at no point should the income have been split on a 50:50 basis with his late father as he did not own the property .” 51. On 8 May 2025, HMRC submitted their “Notice of Objection” to the application for permission to make a late appeal.

52. On 15 July 2025, the Tribunal issued case management directions.

53. On 12 August 2025, HMRC submitted the witness statement (dated 12 August 2025) of HMRC Officer Linda Bingham as evidence.

54. On 11 September 2025, the Tribunal listed the application to make a late appeal (to be heard on 12 November 2025).

55. On the same date (i.e., 11 November 2025), at 20:55, the Appellant applied to submit a late witness statement from [NAME] into evidence.

56. On 12 November 2025, the hearing was adjourned and converted to a case management hearing.

57. On 6 December 2025, the Appellant filed a Supplementary Bundle, including witness statements from both the Appellant (dated 5 December 2025) and [NAME] (dated 11 November 2025). The relevant law and the procedure rules 58. In order to put the parties’ respective contentions into context, we start with the relevant statutory provisions. Taxes Management Act 1970 59. The application for permission to make a late appeal is governed by s 31 A TMA, as follows: “ 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. … (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. … (5) The notice of appeal must specify the grounds of appeal.” 60. Section 49 TMA permits (in one of two situations) a taxpayer to lodge a late appeal, as follows: “ 49 Late notice of appeal (1) This section applies in a case where— (a) notice of appeal may be given to HMRC, but (b) no notice is given before the relevant time limit. (2) Notice may be given after the relevant time limit if— (a) HMRC agree, or (b) where HMRC do not agree, the tribunal gives permission. (3) If the following conditions are met, HMRC shall agree to notice being given after the relevant time limit. (4) Condition A is that the appellant has made a request in writing to HMRC to agree to the notice being given. (5) Condition B is that HMRC are satisfied that there was reasonable excuse for not giving the notice before the relevant time limit. (6) Condition C is that HMRC are satisfied that request under subsection (4) was made without unreasonable delay after the reasonable excuse ceased. (7) If a request of the kind referred to in subsection (4) is made, HMRC must notify the appellant whether or not HMRC agree to the appellant giving notice of appeal after the relevant time limit. (8) In this section “relevant time limit”, in relation to notice of appeal, means the time before which the notice is to be given (but for this section). ” The Procedure Rules 61. The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 SI 2009/273 (“ the Procedure Rules ”) provide the procedural framework for proceedings within the FtT. The overriding objective is the overarching consideration. The case management powers of the FtT are provided for at Rule 5 of the Procedure Rules, as follows: “ Case management powers 5. —(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure. … (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may by direction— … (e) deal with an issue in the proceedings as a preliminary issue; …” 62. Rule 20 (4) of the Procedure Rules provides that: “(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.” 63. With those provisions in mind, we turn to the hearing. Evidence and key submissions 64. The documents for the hearing, set out at [13] above, comprised pleadings, documents and correspondence relating to the investigation, and appeal correspondence. The documents also contained the witness statements of the Appellant, [NAME] and Officer Bingham. We considered the evidence given by the witnesses to be of assistance to us in understanding the details regarding the background to the application for permission to make a late appeal. We shall refer to the evidence given in our “Discussion”, later. Preliminary discissions 65. At the commencement of the hearing on 29 January 2026, we heard HMRC’s application to adduce a supplementary witness statement (and exhibits) from Officer Bingham. We gave ex tempore rulings, which we will refer to in our “Discussion”. The submissions 66. Ms Ofili’s submissions can be summarised as follows: (1) The issue is not whether the Appellant relied on [NAME] but whether her involvement was sufficient to conclude that the Appellant did not have the support of a competent professional adviser during the course of the enquiry that would enable him to understand the enquiry process, and the appeals process. (2) Whilst [NAME]’s role is initially described as an information gathering role, it does appear as though Pemberton, HMRC, and indeed the Appellant, enabled her to take on a broader role – brought about in large part as a result of the inability of the parties to get Pemberton to engage. The Appellant relied on [NAME] during the course of the enquiry. It is a matter for the Tribunal to determine how much weight to attach to any such reliance (being only one of the relevant factors to be determined in this case) when deciding whether to grant the Appellant permission to bring a late appeal. (3) As a general rule, the failures of an adviser are not a ‘good reason’ for delay. However, it must be acknowledged that there can be exceptions to the general rule. [NAME]’s capabilities, and the Appellant’s understanding of those capabilities, justify a departure from the general rule in this case. As long as the Appellant lacked proper understanding of the enquiry, and the appeals process, such lack of understanding is attributable to reliance on [NAME]; and such reliance did contribute to the delay and only ended when appropriate advice was obtained. (4) HMRC were made aware that the Appellant had not received the Assessments and the Penalties.

67. Ms Lawrence’s submissions can be summarised as follows: (1) The Appellant’s appeal to HMRC, in respect of the Assessments, was one year, eleven months and 27 days after the expiration of the 30-day statutory time-limit. The Appellant’s appeal to HMRC, in respect of the Penalties, was one year and nine months after the expiration of the 30-day statutory time-limit. (2) The Appellant had an agent at the opening of the COP9 investigation (i.e., Pemberton), and received the initial opening correspondence dated 26 February 2020. (3) The Appellant made his own decision to use [NAME] as his representative during the enquiry, and understood the outcome of the enquiry at its conclusion. The Appellant has provided no reason as to why having alternative representation during the enquiry meant that he was unable to appeal for almost two years after receiving the Assessment notices. (4) There is no ‘good reason’ why the default occurred. The Appellant’s explanation would suggest that the late appeal is only now being made due to the escalation of bankruptcy proceedings. The Appellant has, further, provided no specific dates as to when any excuse started, and subsequently ended, and no explanation how any reason affected his ability to appeal.

68. At the conclusion of the hearing, we reserved our decision, which we now give with reasons. Our conclusions regarding the key submissions made by the parties are set out below. Findings of fact 69. The “Background Facts” are not in issue between the parties, save that the parties differ in view as to the conclusions that we should reach as a result. We, therefore, adopt the Background Facts at [16] to [57], above, as our “Findings of Fact”, and do not repeat these here. Discussion 70. This is the Appellant’s application for permission to make a late appeal against Assessments and Penalties in respect of rental income. Preliminary matters: hmrc’s applications 71. We start with the application made by HMRC (referred to above). HMRC’s application to rely on a supplementary witness statement from Officer Bingham 72. By an application dated 9 January 2026, HMRC sought permission to submit a supplementary witness statement from Officer Bingham, and accompanying exhibits. The exhibits attached to Officer Bingham’s supplementary witness statement included: (1) EX. 1 – 3: HMRC SA system, confirming agent details for Pemberton, and the period they were temporarily removed in 2021. (2) EX. 4: A copy of the COMP1 forms completed by the Appellant, authorising HMRC to deal with his tax adviser during the enquiry. (3) EX. 5 - 6: Correspondence sent to the Appellant and [NAME] during the enquiry. (4) EX. 7 - 11: SA Tax Calculations. (5) EX. 12: Correspondence sent to the Appellant and [NAME] during the enquiry. (6) EX. 13: SA Statement. (7) EX. 14: Note of telephone call with [NAME] and Officer Bingham; and (8) EX. 15: Email dated 12 May 2021 from [NAME] to Officer Bingham.

73. HMRC considered that the exhibits attached to the witness statement were relevant to the agreed issue of the Appellant’s reliance on [NAME] as contributing to the delay in making an appeal, as they were provided in direct response to the Appellant’s own witness statement. In addition, HMRC believed that Officer Bingham’s supplementary statement would assist the parties regarding the timeline in this application, as limited dates had been provided in the Appellant’ own witness statements. Ms Lawrence renewed this application at the commencement of the hearing before us.

74. HMRC’s position is that Officer Bingham’s supplementary witness statement was drafted in response to the Appellant’s witness statement (dated 5 December 2025) and [NAME]’s witness statement (dated 11 November 2025).

75. SPW’s letter, dated 19 February 2025, was set out in the following terms: “ The appellant did not have professional advisers to deal with this very serious Enquiry. It was for this reason that no appeals were made in good time. It would surely not be equitable to [APPELLANT] to have a liability imposed on him for technical reasons. It is plainly for this reason that the Appellant needs HMRC to open the assessments for all the relevant years. The Appellant took professional advice when he was confronted with a potential Bankruptcy outcome ”. 76. [NAME] says this in her witness statement: “ My Dealings with HMRC ...

15. When HMRC said that these matters are normally dealt with by accountants, I understood that it was usual, but not essential for an accountant or tax adviser to be involved.

16. I genuinely believed I was helping by responding to HMRC’s requests and providing information… … Explanation for the Delay 31. The delay in the Appellant seeking permission to appeal was caused entirely by my lack of understanding of HMRC’s enquiry and appeals process, combined with the Appellant’s reliance on my services after his original accountant stepped back from the matter . ” 77. The Appellant’s witness statement can be summarised as follows: (1) He relied on the help provided by [NAME]. (2) He did not receive the Assessments or Penalties . Copies were sent to [NAME] but not shared with him; (3) He did not know that he could challenge HMRC’s decisions; and (4) In November 2023, an HMRC debt management letter regarding bankruptcy prompted him to get help.

78. Until the submission of the recent witness statements, the Appellant’s explanation for the lateness of his appeal to HMRC was considered by HMRC to be lacking in any detail; despite the request for “Further and Better Particulars”. HMRC submit that they were, therefore, unable to ascertain the precise grounds upon which the Appellant relied; which had only now been provided through the additional evidence.

79. The Appellant responded to HMRC’s application on 22 January 2026. Within that response, the Appellant made no objection, in principle, to the supplementary statement and exhibits being admitted (if the documentation consisted of admissible evidence of fact).

80. Having considered the application, we are satisfied that Officer Bingham’s witness statement, and exhibits, are relevant to the issues before us. We are further satisfied that the Appellant is not prejudiced by the documents that HMRC seeks to rely on as they relate to his own tax affairs, and respond (directly) to matters raised in the Appellant’s application for permission to make a late appeal. Furthermore, the supplementary witness statement only seeks to respond to matters raised in the Appellant’s own witness statement(s). In this respect, the Appellant has referred to his mental ill-health (within his witness statement); which may affect his ability to recall events dating to some time ago.

81. In Gestmin SGPS SA v Credit Suisse ( UK ) Ltd [2013] EWHC 3560 (Comm) , [2013] All ER (D) 191 (‘ Gestmin ’), at [18], Leggatt J (as he then was), said this: “18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.” 82. The case gave rise to what are commonly referred to as “ the Gestmin principles ”.

83. The Tribunal’s function in assessing the probative value of oral evidence, which purports to be a recollection of events which occurred many years ago, should be informed by the guidance of the High Court in Kimathi v Foreign & Commonwealth Office [2018] EWHC 2066 (QB) , [2018] All ER (D) 145 (‘ Kimanthi ’); recently affirmed in R ( on the application of Dutta ) v General Medical Council [2020] EWHC 1974 (Admin) (‘ Dutta ’) - in which the importance of the Gestmin principles was re-emphasised. In summary, the Gestmin principles include, inter alia , that: (1) The best approach for a Tribunal is to base factual findings on inferences drawn from documentary evidence and known or probable facts ( Kimathi at [96](i)); (2) Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by lawyers who are conscious of the significance for the issues in the case of what the witness does or does not say ( Kimathi at [96](i)); and (3) A witness, however honest, rarely persuades the judge that their present recollection is preferable to that which was contemporaneously evidenced. Therefore, contemporary documents are always of the utmost importance ( Kimathi at [96](ii));

84. The Gestmin principles should be applied in respect the fallibility of human memory, and the need for contemporaneous evidence. The documents exhibited to Officer Bingham’s witness statement are contemporaneous, and relate to the background leading up to these proceedings. We, therefore, admitted the supplementary statement and supporting exhibits (except for EX. 15 – [NAME]’s email to Officer Bingham – which was ruled inadmissible by Judge Sukul) in order to assist us in reaching our Decision. We further bear in mind the presumption that all relevant evidence should be admitted, unless there is a compelling reason to the contrary: Atlantic Electronics Ltd v R & C Comrs [2013] EWCA Civ 651 , at [31].

85. Officer Bingham is a relevant witness of fact as she was the officer involved throughout the investigation. In Mungavin & Ors v HMRC [2020] UKUT 0011 (TCC) (‘ Mungavin ’), Nugee J (sitting in the UT) considered the proper function of a witness of fact, and said this at [82]: “82. I should explain in more detail why I take this view. Without attempting to lay down any exhaustive rules, it seems to me that in general the proper function of factual witnesses, even of those involved in a case in a professional capacity…, is to give evidence of facts relevant to the issues in the case of which they can speak from their own knowledge (including in appropriate circumstances evidence of hearsay statements) ...” 86. Ms Ofili had the opportunity to cross-examine Officer Bingham as Officer Bingham submitted herself to cross-examination. Moreover, Ms Ofili was not precluded from addressing any matters raised in the witness statement by submissions.

87. We proceed to determine the substantive application. Substantive application: permission to make a late appeal 88. The Appellant seeks permission to make a late appeal against Assessments and Penalties that arose as a result of rental income. The application for permission to make a late appeal is governed by s 31 A TMA (supra). This permits taxpayers to appeal; but the appeal must be made within 30 days after the date the notice of the penalty, or surcharge, is given to the taxpayer.

89. Section 49 TMA permits, in one of two situations, a taxpayer to lodge a late appeal: (1) The first circumstance is where HMRC are satisfied that there is a “reasonable excuse” for not giving the notice in time, and the appeal was lodged “without unreasonable delay after the excuse ceased” (ss 49(5) and (6) TMA); and (2) The second circumstance is where this Tribunal ‘gives permission’ (s 49(2) TMA).

90. It is well established that the Tribunal must take all relevant matters into account when exercising its discretion to admit a late appeal. While this means that the Tribunal might, in appropriate circumstances, grant leave to appeal out of time to a taxpayer without a reasonable excuse, it also means that the Tribunal will take all matters into account, and so a taxpayer with a reasonable excuse will not necessarily be granted permission to appeal out of time. There are no fetters given in the legislation on the exercise of discretion by the Tribunal. HMRC have objected to the appeal being made late. The authorities and the martland three-stage test 91. The approach to delay and relief from sanctions has been the subject of much adjudication and consideration. In light of the case law that has arisen both before and during these proceedings, it is helpful to set out the case law before proceeding to apply the principles established in relation to the approach to this application. Data Select 92. In Data Select Ltd v R & C Comrs [2012] UKUT 187 (TCC) , [2012] STC 2195 (‘ Data Select ’), Morgan J described the approach to applications for extensions of time limits in the following way: “34. … Applications for extensions of time limits of various kinds are commonplace and the approach to be adopted is well established. As a general rule, when a court or tribunal is asked to extend a relevant time limit, the court or tribunal asks itself the following questions: (1) what is the purpose of the time limit? (2) how long was the delay? (3) is there a good explanation for the delay? (4) what will be the consequences for the parties of an extension of time? and (5) what will be the consequences for the parties of a refusal to extend time? The court or tribunal then makes its decision in the light of the answers to those questions. … 37. …The general comments in the above cases will also be found helpful in many other cases. Some of the above cases stress the importance of finality in litigation. Those remarks are of particular relevance where the application concerns an intended appeal against a judicial decision. The particular comments about finality in litigation are not directly applicable where the application concerns an intended appeal against a determination by HMRC, where there has been no judicial decision as to the position. None the less, those comments stress the desirability of not re-opening matters after a lengthy interval where one or both parties were entitled to assume that matters had been finally fixed and settled and that point applies to an appeal against a determination by HMRC as it does to appeal against a judicial decision.” 93. In the context of an application to make a late appeal, the obligation is simply to take into account of all of the relevant circumstances, and to disregard factors that are irrelevant. Denton 94. Helpful guidance can also be derived from the three-stage process set out by the Court of Appeal in Denton , for a clear exposition of how the provisions of rule 3.9(1) of the Civil Procedure Rules (“ the CPR ”) should be given effect. CPR rule 3.9 is concerned with the grant of relief against sanctions.   There is no equivalent in the Procedure Rules to rule 3.9 of the CPR; a point which was previously relevant because of the dispute that arose in Medpro UT , which we will turn to later.

95. In Denton , the majority in the Court of Appeal described the three-stage approach in the following terms, at [24]: “ …A judge should address an application for relief from sanctions in three stages. 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)]”. …” 96. That approach is no different, in principle, to that set out in Data Select . The seriousness and significance of the relevant failure has always been one of the factors relevant to the court or tribunal’s determination. The reason for the delay is a common factor in both Denton and Data Select , as is the need to evaluate the circumstances of the case so as to enable the court or tribunal to deal with the matter justly. BPP 97. In the Court of Appeal decision in BPP Holdings Ltd v HMRC [2016] EWCA Civ 121 ; [2016] 1 WLR 1915 (‘ BPP CoA ’), a direction had been made by the FtT indicating that HMRC would be barred from participating in proceedings if the direction was not adhered to. This was the relevance of the strict approach in adhering to time limits. At [37], Ryder LJ (with whom Richards and Moore-Bick LJJ agreed) said this: “There is nothing in the wording of the overriding objective of the tax tribunal rules that is inconsistent with the general legal policy described in  Mitchell  and  Denton . As to that policy, I can detect no justification for a more relaxed approach to compliance with rules and directions in the tribunals and while I might commend the Civil Procedure Rule Committee for setting out the policy in such clear terms, it need hardly be said that the terms of the overriding objective in the tribunal rules likewise incorporate proportionality, cost and timeliness. It should not need to be said that a tribunal's orders, rules and practice directions are to be complied with in like manner to a courts. If it needs to be said, I have now said it.” 98. The Court of Appeal, ultimately, endorsed the approach described by Morgan J in Data Select .

99. In the Supreme Court decision in BPP Holdings v R & C Comrs [2017] UKSC 55 ; [2017] 1 WLR 2945 (‘ BPP SC ’), Lord Neuberger PSC observed, at [24] to [26], that whilst rule 3.9 of the CPR - and the authorities relating to it - were only strictly applicable to the courts, they became applicable to the tribunal when adopted by the UT (Judge Sinfield) in McCarthy & Stone (Developments) Ltd [2014] STC 973 (‘ McCarthy ’). At [43], after referring to differences and similarities between the CPR and the Procedure Rules (in that case the Tribunals Procedure (Upper Tribunal) Rules 2008 SI 2008/2698), Judge Sinfield accepted that “the CPR do not apply to tribunals” but added that he did not: “accept that the UT should adopt a different, i.e., more relaxed, approach to compliance with rules, directions and orders than the courts that are subject to the CPR.” 100. The same view was expressed by Ryder LJ at [37] and [38] in BPP CoA : “I can detect no justification for a more relaxed approach to compliance with rules and directions in the tribunals… [i]t should not need to be said that a tribunal’s orders, rules and practice directions are to be complied with in like manner to a court’s” 101. In BPP SC , Lord Neuberger summarised the position thus: “In a nutshell, the cases on time limits and sanctions in the CPR do not apply directly, but the Tribunals should generally follow a similar approach.” 102. The Supreme Court acknowledge that guidance that was approved was guidance attaching significant weight to certain factors. Martland 103. The approach to the consideration of an application to extend time was adequately set out by the UT in Martland (Judges Berner and Poole). Martland concerned a late appeal to the FtT, such as that which is before us. The approach adopted followed from a consideration of authorities, including BPP . The UT held that the principle of fairness and justice is applicable, as a general matter, to any exercise of a judicial discretion . The UT concluded that the changes to rule 3.9 of the CPR, and the evolving approach to applications for relief from sanctions under that rule, also apply to applications for permissions to appeal to the FtT outside the relevant statutory time-limit. The UT said this, at [43]: “43. ... Whether considering an application which is made directly under rule 3.9 (or under the FTT Rules, which the Supreme Court in BPP clearly considered analogous) or an application to notify an appeal to the FTT outside the statutory time limit, it is clear that the judge will be exercising a judicial discretion. The consequences of the judge's decision in agreeing (or refusing) to admit a late appeal are often no different in practical terms from the consequences of allowing (or refusing) to grant relief from sanctions - especially where the sanction in question is the striking out of an appeal (or, as in BPP , the barring of a party from further participation in it). The clear message emerging from the cases - particularised in Denton and similar cases and implicitly endorsed in BPP - is that in exercising judicial discretions generally, particular importance is to be given to the need for "litigation to be conducted efficiently and at proportionate cost", and "to enforce compliance with rules, practice directions and orders". We see no reason why the principles embodied in this message should not apply to applications to admit late appeals just as much as to applications for relief from sanctions, though of course this does not detract from the general injunction which continues to appear in CPR rule 3.9 to "consider all the circumstances of the case.” 104. Applying the “ three-stage approach ” adopted in Denton , the UT in Martland set out the following approach, at [44] and [45]: “44. When the FTT is considering applications for permission to appeal out of time, therefore, it must be remembered that the starting point is that permission should not be granted unless the FTT is satisfied on balance that it should be. In considering that question, we consider the FTT can usefully follow the three- stage process set out in Denton : (1) Establish the length of the delay. If it was very short (which would, in the absence of unusual circumstances equate to the breach being “neither serious nor significant”), then the tribunal is unlikely to need to spend much time on the second and third stages – though this cannot be taken to mean that applications can be granted for very short delays without moving on to a consideration of those stages. (2) The reason (or reasons) why the default occurred should be established. (3) The tribunal can then move onto its evaluation of all the circumstances of the case. This will involve a balancing exercise which will essentially assess the merits of the reasons given for the delay and the prejudice which would be caused to both parties by granting or refusing the extension of time.” 105. At [45], the UT said this concerning the “ balancing exercise ” at ‘ Stage-3 ’: “That balancing exercise should take into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected.” 106. At [46], the UT went on to say this: “In doing so, the FTT can have regard to any obvious strength or weakness of the applicant's case; this goes to the question of prejudice – there is obviously much greater prejudice for an applicant to lose the opportunity of putting forward a really strong case than a very weak one. It is important however that this should not descend into a detailed analysis of the underlying merits of the appeal.” 107. The guidance in Martland was approved by the UT in Katib (Mann J and Judge Richards). The point at [45] in Martland was reiterated in Katib , where the UT said this, at [17]: “We have, however, concluded that the FTT did make an error of law in failing to acknowledge or give proper force to the position that, as a matter of principle , the need for statutory time limits to be respected was a matter of particular importance to the exercise of its discretion.” 108. The decision of the UT in Romasave (Judge Roger Berner and Judge Sarah Falk (as she then was)) made the same point, at [96]: “The exercise of a discretion to allow a late appeal is a matter of material import, since it gives the tribunal a jurisdiction it would not otherwise have. Time limits imposed by law should generally be respected.” 109. The three- stage test described in Martland plainly requires the FtT to consider all the circumstances of the case. That expressly recognises that there is a judicial discretion to be exercised. The UT observed that rule 3.9 of the CPR represents the main point of connection between the previous authorities specific to the exercise of the discretion to admit late tax appeals, and the well-known wider stream of authority on relief from sanctions and extensions of time in connection with the procedural rules of the courts and tribunals; the key cases from the latter being Denton and BPP . 110. The approach in Martland was also confirmed by the UT in Websons (8) Ltd v HMRC [2020] UKUT 0154 (TCC) (‘ Websons ’). Medpro UT 111. Returning to Medpro UT , the issue raised by HMRC was not whether the guidance in Martland is flawed, but whether it was permissible for the UT to formulate guidelines for the exercise of discretion by the FtT, attaching particular significance to certain factors. T he appellants in Medpro UT had argued that the UT’s previous decisions in the line of authority following  Martland was impermissible because it amounted to “imposing a fetter on the broad statutory discretion” afforded by, in that instance, s 83 G of the Value Added Tax Act 1994 (‘VATA’). In Medpro UT , there was a divergence of views between the two judges sitting in the UT (Marcus Smith J and Judge Jonathan Cannan) about whether  Martland  should be followed. It was, however, common ground between the judges that the three-stage test set out in  Martland  was correct. 112. At [88], Marcus Smith J said this: “we consider the three stage structure of the discretion at [44] of  Martland  … to represent an unimpeachable approach.” 113. And at [94] to [95], he said this: “94. …At [44] of  Martland , the Upper Tribunal set out the three-stage test. That paragraph says nothing about the ex-ante weight to be attached to the factors being weighed and is unimpeachable. “95. The question is whether [45] of  Martland  … goes further and in referring to the “particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected” was doing what the Court of Appeal did in  Denton , and according these factors particular weight. Read on its own, it must be doubted whether  Martland  was doing this.  Martland  at [45] is not unequivocally clear, and can be read as merely stressing that these factors matter, as indeed they do. But there can be no doubt that the Upper Tribunal has subsequently followed the  Denton  approach not merely as to the structure of the discretion (ie the three-stage test) but also as to the (additional, extra) weight to be accorded to the CPR 3.9(a) and (b) factors (ie the “top table” point) ...” 114. Marcus Smith J said that he did not consider this to be a permissible approach in the case of extensions of time under s 83 G(6) VATA. This was because the change to rule 3.9 of the CPR enabled the Court of Appeal to take the approach it did in  Denton . The UT, therefore, approved the three-stage approach set out at [44] of Martland, but disapproved of the first sentence of [45] of the decision, concluding that in construing s 83 G(6) VATA no “ ex ante weight” should be given to the factors set out in CPR rule 3.9(1(a) and (b) (regarding the “particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected”). Pawar 115. In Tajinder Pawar v HMRC   [2025] UKUT 309 (TCC) (‘ Pawar ’) (Judges Swami Raghavan and Nicholas Paines KC) (a case which concerned s 83 G(6) VATA), the UT followed the Marcus Smith J judgment in  Medpro UT  (i.e., that at the third stage particular weight need not be given to the importance of complying with directions, time limits and the need for effective litigation). The UT said this, at [91]: “91. …In summary, Marcus Smith J concluded that paragraph [45] of Martland was clearly wrong in glossing section 83 G of VATA 1994 so as to include the factors contained in the current version of CPR 3.9, which are absent from the statutory test in section 83 G. Judge Cannan did not consider Martland to be clearly wrong in this respect, concluding that Parliament had envisaged that the Upper Tribunal would give guidance on the exercise of the discretion in section 83 G, which could extend to drawing an analogy with the CPR and giving guidance on the weight to be attributed to particular factors.” 116. At [92] to [93], the UT said this: “92. The Appellant submits that as a matter of judicial comity we should follow the decision in Medpro UT unless we consider it to be clearly wrong. The difficulty for us here is the existence of two previous decisions of the Upper Tribunal, one of which holds the other to be clearly wrong.

93. We find ourselves unable to conclude that either decision is clearly wrong or, conversely, clearly right. We note that HMRC are contemplating an appeal so it is possible the conflict may be resolved at a higher level, but we cannot delay this decision on that account. In the circumstances, we consider that we should follow Medpro UT on the grounds that it is the more recent decision and expressly considers the correctness of the earlier decision.” 117. And, at [95]: “95. …In remaking the decision we shall follow the three stage approach in Martland save that when we perform the balancing exercise at paragraph 44 of Martland we shall do so without giving special weight to the “particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected”. 118. Therefore, as the UT panel could not determine that either  Medpro UT  or  Martland  were obviously wrong, the later judgment  Medpro UT  was followed.  That re-made decision however again refused the admission of the appeal. HMRC appealed to the Court of Appeal. We shall turn to the Court of Appeal’s decision in HMRC v Medpro & Ors [2026] EWCA Civ 14 (‘ Medpro CoA ’) shortly. Lands Luo 119. In  Lands Luo (Dingemans LJ, Judge Snelders and Member Shearer) (which is a decision of the FtT and concerned s 83 G(4)(c) VATA), after careful analysis of both the Court of Appeal and Supreme Court judgments in  BPP , the FtT concluded that the correct approach is that set out in  Martland .  The FtT noted that in doing so, they were relying on higher authority than  Martland  or  Medpro UT . The FtT concluded that the approach in  Martland  is consistent with the approach of the Court of Appeal in  BPP CoA ;   which was affirmed by the Supreme Court in BPP SC . Medpro CoA 120. In Medpro CoA , Lewison LJ (with whom Whipple and Miles LJJ agreed) said this, at [44] and [45]: “44. I also consider that Marcus Smith J’s characterisation of the Martland guidance (as interpreted in Katib ) as amounting to a fetter on discretion is overblown. The three- stage test described in Martland plainly requires the FTT to consider all the circumstances of the case. That expressly recognises that there is a judicial discretion to be exercised.

45. In my judgment, therefore, Marcus Smith J was wrong, and Judge Cannan was right…First, guidance is just that: guidance. Where a superior court or tribunal gives guidance to an inferior court or tribunal, the inferior court or tribunal may depart from it if it gives sound reasons for doing so. That is reflected in Lady Rose’s reference to the absence of special circumstances. Second, as Lady Rose made clear, it is appropriate for an appellate court to lay down guidance even where a discretion appears to be unfettered. Third, in BPP the Supreme Court specifically approved the giving of guidance where non-compliance with time limits is in issue.” 121. The Court of Appeal concluded thus, at [59]: “…The Martland guidance (as amplified by Katib ) is appropriate.” 122. The Supreme Court therefore affirmed the Court of Appeal’s decision. 123. With those principles in mind, and applying the Martland three-stage test as amplified in Katib and Medpro , we turn to the circumstances of this application: The length of the delay 124. It is accepted, on behalf of the Appellant, that the statutory time-limit for making an appeal was missed in this application. This matter is not in issue between the parties. The length of the delay is to be considered by reference to the time-limit for submitting an appeal. This was confirmed in Romasave , at [96]. There, the UT held that: “In the context of an appeal right which must be exercised within 30 days from the date of the document notifying the decision, a delay of more than three months cannot be described as anything but serious and significant.” 125. The Assessments were raised on 23 March 2022 and the Penalties were issued on 28 June 2022. On 18 April 2024, the Appellant made an appeal against the Assessments and the Penalties to HMRC. This was one year, eleven months and 27 days after the expiration of the 30-day statutory time limit at s 31 A TMA (in relation to the Assessments); and one year and nine months after the statutory time-limit (in relation to the Penalties). It then took the Appellant a further three months and five days to make an appeal to the FtT (on 27 August 2024), after receiving HMRC’s letter of 22 May 2024 refusing to accept the late appeal. In respect of the first stage, there can, in our view, be no argument but that the delay in making an appeal was “serious and significant”. In Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387 , at [105], the Court of Appeal has, similarly, described exceeding a time-limit of 28 days for applying to that court for permission to appeal by 24 days as significant and a delay of more than three months as serious. The reasons why the default occurred 126. In relation to the second stage (and the reasons why the default occurred), in his oral evidence, the Appellant stated (in summary) that: (1) Pemberton failed to provide him with any advice; (2) He did not have a tax adviser and felt stuck with HMRC’s decision; (3) [NAME] was recommended to him by Pemberton and she has contributed to the delay in making an appeal; (4) [NAME] told him that the best way to get the enquiry dealt with as quickly as possible was to provide HMRC with the information they asked for, and to be as co-operative and agreeable as possible; (5) He did not rely on [NAME] for tax advice; (6) He did not receive the Assessments and Penalties; (7) Although he did not think that he owed any money, he did not think that he could challenge the decisions; (8) His mother’s death in 2013 and his father’s subsequent ill-health had an effect on his mental health; (9) His father’s death in January 2023 sent him into a deep depression; and (10) In November 2023, an HMRC debt management letter regarding bankruptcy prompted him to get help. 127. We have already considered the correspondence received from SPW. 128. Ms Ofili submits that whilst [NAME]’s role is initially described as an information gathering role, Pemberton, HMRC and the Appellant enabled her to take on a broader role. She adds that the Appellant relied on [NAME] during the course of the enquiry, and that it is a matter for us to determine how much weight to attach to any such reliance when deciding whether to grant the Appellant permission to bring a late appeal. Ms Ofili further adds that whilst the general rule is that the failures of an adviser are not a “good reason” for delay, there can be exceptions to the general rule. In this respect, she submits that the capabilities of [NAME], and the Appellant’s understanding of those capabilities, justifies a departure from the general rule in this case. 129. Ms Lawrence submits, on the contrary, that the Appellant made his own decision as to his representative during the enquiry, and understood the outcome of the enquiry at its conclusion. She further submits that if the Appellant was failed by his representatives, then he should seek redress from them. Ms Lawrence further relies on the evidence given by Officer Bingham. In her oral evidence, Officer Bingham stated that the Appellant was kept informed, throughout the investigation, and that he did have the representative of his choosing. She adds that the time between the settlement meeting and the raising of the Penalties was four months; which she considered to be sufficient time for any arguments, or alternative advice, to be sought by the Appellant. Officer Bingham was further of the view that the escalation of debt recovery is the reason for the late appeal being made. 130. We derived considerable benefit from hearing the oral evidence given in this application. Whilst reference is made to a lack of advice, it is nevertheless not disputed that the Appellant did have agents at the opening of the COP9 investigation. Those agents were Pemberton. Furthermore, the Appellant does not dispute receiving the opening letter, which set out the investigation that was to proceed. Additional information was requested by Officer Bingham on 9 November 2020, and Pemberton responded to this by a letter dated 12 February 2021. Pemberton were, therefore, still involved in the enquiry at that stage. 131. On 17 September 2021, [NAME] informed Officer Bingham that Pemberton had removed themselves from the Appellant’s record. Materially, however, Officer Bingham advised [NAME] that she should speak to the Appellant and explain that this was a COP9 investigation, which would normally be dealt with by an accountant. It is not disputed that the Appellant proceeded to sign the COMP1 form on 17 September 2021. This gave temporary authorisation for HMRC to deal with [NAME] during the enquiry. The Appellant’s evidence was that he signed the COMP1 and would have “ signed anything ” because he was “ accused of fraud ”. We find that this not the manner in which to approach an investigation of the nature that was being conducted in these proceedings. By his own evidence, the Appellant states that he did not seek tax advice from [NAME]. This statement by the Appellant further supports the conclusion that the Appellant was aware of the serious nature of the investigation, which beggars the question why he did not seek alternative advice having been represented by Pemberton at the start of the investigation. 132. The Appellant confirmed having received HMRC’s letter of 17 December 2021. The letter stated, inter alia , that: “ I refer to my on-going investigation into your tax affairs until the period ended 5/6/2020 and I would like to set out HMRC’s view of the matter. Points agreed  You did not return all the income earned from your property business.  You have agreed on the basis as to how HMRC have calculated the income tax and national insurance you are due to pay.  You received rental income from the property 2 Park Cottages from 2009/2010 Points not agreed  How and when the income tax and NICs due will be paid Your view It is your view you are actively seeking ways to fund the settlement. HMRC view Whilst HMRC agree you are attempting to fund the settlement by selling property, the lack of firm completion dates is a concern. Also, while you have made a payment on account of £22,500, this is only a small percentage of the actual income tax and NICs due. As previously advised, if you are seeking to settle via a contract by instalment payments, regular, significant amounts should have been paid throughout my investigation .” 133. The letter, unequivocally, set out that the Appellant was considering settlement, and that the calculations made by HMRC had been agreed. The Appellant did not raise any objection to this letter when it was issued. HMRC then issued the Assessments and Penalties, and he has not referred to seeking any tax advice at this stage (if he felt that he had been failed by Pemberton and was not relying on [NAME] for advice). 134. Whilst the Appellant refers to not having received the Assessments and Penalties, we are satisfied that the Assessments and Penalties were issued to the Appellant, directly. The Appellant asserts that he did not receive the Assessments and Penalties. In this respect, Officer Bingham’s evidence was that the decisions were generated by her via HMRC’s central service, and addressed to the Appellant at the correct address. Section 7 of the Interpretation Act 1978 (which relates to service by post) provides that: “Where an Act authorises or requires any document to be served by post (whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”. 135. The notices are, therefore, deemed to be received unless the contrary is proved. There is no suggestion that there were any problems with the postal service at the time that the notices were sent to the Appellant. The Appellant has not disputed the address that HMRC had on file for him. We are satisfied that the notices were sent to the postal address linked to the Appellant’s account, and there is no suggestion that they were returned undelivered . This, we find, should have triggered further action on the part of the Appellant. Furthermore, the Appellant does not argue that there were defects in the Penalties, or in the procedure that HMRC followed when issuing them. In any event, such arguments were considered, and rejected, by the Court of Appeal in Donaldson v HMRC [2016] EWCA Civ 761 (‘ Donaldson ’). We are bound by that decision. 136. Materially, during cross-examination, the Appellant was unable to maintain a positive case of non-receipt of the decision notices. He went as far as saying that he “did not know” if he had received the decisions. He then referred to there being a “ milk churn with letters at the farm ”. 137. Furthermore, during her oral evidence, [NAME] did not dispute having received the Assessments or the Penalties. Her evidence was that it was her practice to pass on correspondence to the Appellant, and to Pemberton. On 29 June 2022, Officer Bingham emailed [NAME] in the following terms: “ Dear [NAME] Attached please find a copy of the penalty information and notification of penalty assessment issued to your client. I have also attached a copy of Mr [APPELLANT]’s SA statement as at today’s date. Please note the balance on this does not include the amount being charged by the penalty assessment nor have the payments on account already held been considered. Finally there is an up to date statement for Mr [NAME] as previously discussed. Yours sincerely Linda ” 138. [NAME] responded in the following terms: “ Hi Linda Thank you, I will pass this information over to [APPELLANT] and Pembertons Thank you for all your help in finalising all the outstanding tax and penalties. Kind regards [NAME] ” 139. This strongly suggests that [NAME] received the Penalties. If [NAME]’s role was to gather information, then it is reasonable to expect that any information being gathered was being passed on to the Appellant and Pemberton (as [NAME] expressly states). This information would include the correspondence that had been received by both the Appellant, and her ([NAME]). Any failure to pass on the information to the Appellant and Pemberton does not undermine proper service by HMRC. Whilst [NAME] suggested in oral evidence that she had “undiagnosed” dyslexia, no medical evidence to substantiate this claim has ever been provided and, in any event, this matter had not been raised prior to the hearing. 140. At the settlement meeting, the Appellant had confirmed that: (1) he was happy with how the investigation was conducted; (2) he was satisfied with the figures; (3) he knew what was outstanding; and (4) he had taken on board the points about the current business. 141. On 20 June 2022, the Appellant confirmed that he was content to pay the outstanding amounts due. This has not been disputed by the Appellant. 142. The Penalties were later issued (on 28 June 2022), and stated the following: “ Enclosed please find information relating to the penalties we have charged. You agreed your behaviours at our settlement meeting on 16 February 2022 and the quality of disclosure is based on the formal closure of your investigation .” 143. This clearly showed that the investigation was being closed, and that no appeal against the Assessments had been received by HMRC at this time. 144. The Assessments included the following advice: “ What to do if you disagree If you disagree with this notice of assessment, you can appeal. If you want to appeal, you must write to us within 30 days of the date of this assessment, telling us why you disagree. If we cannot reach an agreement, you can then ask for: • HMRC officer not involved in the case to review the decision • Independent tribunal to consider your appeal. ” [sic] 145. This clearly set out the process that the Appellant was required to follow upon receipt of the Assessments. 146. Despite the detailed and lengthy submissions made by the parties, the Appellant’s application is, essentially, based on adviser failings/lack of advice. In Katib , at [49] and [54], the UT said this: “49. …in most cases, a litigant seeking permission to make a late appeal on the grounds that previous advisers were deficient will face an uphill task and should expect to provide a full account of exchanges and communications with those advisers … … 54 …when considering applications for permission to make a late appeal, failures by a litigant’s adviser should generally be treated as failures by the litigant.” 147. At [58] to [59], the UT said this: “58. It is clear from the Decision that [NAME] did not provide competent advice to [NAME], misled him as to what steps were being taken, and needed to be taken, to appeal against the PLNs and failed to appeal against the PLNs on [NAME]’s behalf (see [7] and [16]). But extraordinary though some of [NAME]’s correspondence was, the core of [NAME]’s complaint is that [NAME] was incompetent, did not give proper advice, failed to appeal on time and told [NAME] that matters were in hand when they were not. In other words, he did not do his job. That core complaint is, unfortunately, not as uncommon as it should be. It may be that the nature of the incompetence is rather more striking, if not spectacular, than one normally sees, but that makes no difference in these circumstances. It cannot be the case that a greater degree of adviser incompetence improves one’s chances of an appeal, either by enabling the client to distance himself from the activity or otherwise.

59. Mr Magee urged us to give particular weight to the FTT’s finding, at [15], that [NAME] did not have the expertise to deal with the dispute with HMRC himself, but that does not weigh greatly in the balance since most people who instruct a representative to deal with litigation do so because of their own lack of expertise in this arena. We do not consider that, given the particular importance of respecting statutory time limits, [NAME]’s complaints against [NAME] or his own lack of experience in tax matters are sufficient to displace the general rule that [NAME] should bear the consequences of [NAME]’s failings and, if he wishes, pursue a claim in damages against him or Sovereign Associates for any loss he suffers as a result. This conclusion is fortified by the fact that the FTT’s findings demonstrate that there were some warning signs that should have alerted [NAME] to the fact that [NAME] was not equal to the task. Despite [NAME] assuring [NAME] that his appeals were in hand, he was still receiving threats of enforcement action ([9]). [NAME]’s advice to “cease to be a man by making a declaration to this effect” should have alerted [NAME] to the warning signs. [NAME] is not without responsibility in this story.” 148. The decision in Pawar provides useful comment on Katib . At [77], the UT said this: “77. In fairness we note that in one of the authorities Mr McNall referred us to ( Corbin’s case at [22] ( Corbin v Penfold Metallising Co Ltd [2000] 4 WLUK 152 referred to in Tyers v Aegis Defence Service (BVI ) Ltd and others [2023] EWHC 896 (KB) it was described how the litigant did what a person in his position might be expected to do “which is to go to [their] solicitors, who are apparently efficient and responsible in this area of work, and left them to get on with it”. But in our view that cannot be read as a general proposition that applies across the board irrespective of the particular factual circumstances so as to preclude a tribunal finding that a litigant retained some responsibility even when a representative was instructed. We therefore agree there is no authority for a general proposition that a representative could be relied on in all circumstances.” 149. The UT in Medpro UT did not criticise the “general rule” in Katib regarding attribution of the adviser’s failures. At [49], the UT held that in most cases where reliance was placed on an adviser being deficient, the appellant “...should expect to provide a full account of exchanges and communications with those advisers.” 150. We are bound by the decision in Katib . We find that the Appellant has not provided any account of exchanges and communications with his advisers. 151. Whilst the following are decisions of the FtT, we find them to be highly persuasive, though not binding on us: 152. In Subway London Ltd v HMRC [2019] UKFTT 579 (TC) , Judge Zaman summarised the reasoning of the UT in Katib as follows: “64… (1) failures by the taxpayer’s adviser should generally be treated as failures by the taxpayer; (2) the general rule that the failure of an adviser to advise the taxpayer of the deadlines for making appeals, or to submit timely appeals on his behalf, is unlikely to amount to a "good reason" for missing those deadlines when considering the second stage of the evaluation required by  Martland ; (3) when considering the third stage of the evaluation required by  Martland , exceptions to the general rule are possible and, if a taxpayer was misled by his advisers, that is a relevant consideration; (4) the core of the taxpayer’s complaint is that the adviser was incompetent, did not give proper advice, failed to appeal on time and told the taxpayer that matters were in hand when they were not.  That core complaint is not as uncommon as it should be.  It cannot be the case that a greater degree of adviser incompetence improves one's chances of an appeal; (5) the fact that the taxpayer did not have the expertise to deal with the dispute with HMRC himself does not weigh greatly in the balance since most people who instruct a representative to deal with litigation do so because of their own lack of expertise in this arena; (6) given the particular importance of respecting statutory time limits, neither the taxpayer's complaints against his adviser nor his own lack of experience are sufficient to displace the general rule that a taxpayer should bear the consequences of his adviser’s failings; (7) this conclusion is fortified by the fact that there were some warning signs that should have alerted the taxpayer to the fact that the adviser was not equal to the task – the taxpayer was still receiving threats of enforcement action, and the advice to "cease to be a man by making a declaration to this effect" should have alerted the taxpayer to the warning signs; (8) the adviser’s conduct does not have any real weight when considering the factors relevant to the final stage of the three-stage approach outlined in  Martland ;  and (9) whilst the financial consequences of the taxpayer not being able to appeal were very serious because his means were limited such that he would lose his home, this factor was not as weighty as the Tribunal said it was.  The core point is that the taxpayer would suffer hardship if he (in effect) lost the appeal for procedural reasons. However, that could be propounded by large numbers of taxpayers, and it does not have sufficient weight to overcome the difficulties posed by the fact that the delays were very significant, and there was no good reason for them.” 153. In Green , Judge Sinfield (the then President of the FtT) said this, at [46] to [48]: “46. Unfortunately for [NAME], it is well established that “when considering applications for permission to make a late appeal, failures by a litigant's adviser should generally be treated as failures by the litigant” (see the Upper Tribunal's decision in HMRC v Katib [2019] STC 2106 ('Katib') at [54]). In Katib , the Upper Tribunal had to consider the extent to which reliance on an adviser was a justifiable reason for failing to make an appeal in time. In that case, the adviser did not provide competent advice to [NAME], misled him as to what steps were being taken to appeal and failed to appeal on [NAME]'s behalf. On the facts of the case, the Upper Tribunal concluded that failings by the appellant's agent could not be relied upon by the appellant at any stage in the Martland analysis. The Upper Tribunal observed at [56] that: “… the correct approach in this case is to start with the general rule that the failure of [the adviser] to advise [NAME] of the deadlines for making appeals, or to submit timely appeals on [NAME]'s behalf, is unlikely to amount to a 'good reason' for missing those deadlines when considering the second stage of the evaluation required by Martland . However, when considering the third stage of the evaluation required by Martland , we should recognise that exceptions to the general rule are possible and that, if [NAME] was misled by his advisers, that is a relevant consideration.” 47. In [58] and [59], the Upper Tribunal said: “… the core of [NAME]'s complaint is that [the adviser] was incompetent, did not give proper advice, failed to appeal on time and told [NAME] that matters were in hand when they were not. In other words, he did not do his job. That core complaint is, unfortunately, not as uncommon as it should be. It may be that the nature of the incompetence is rather more striking, if not spectacular, than one normally sees, but that makes no difference in these circumstances. It cannot be the case that a greater degree of adviser incompetence improves one's chances of an appeal, either by enabling the client to distance himself from the activity or otherwise.” 48.We are bound by the decision in Katib and, as a result, we are driven to find that the fact that [NAME] was let down by [NAME] and [NAME] does not constitute a good reason for the failure to appeal.” 154. The duty remains on the Appellant to ensure that his tax obligations are adhered to. Whilst adviser failings may form an exception to the rule, this is usually in relation to the third-stage of Martland . Notably, the Appellant in the application before us has not provided any information or documents relating to any communication that he had with Pemberton, or indeed [NAME]. T here was no indication that the Appellant had asked his adviser what steps should be taken. There is, further, no evidence to support a finding that the Appellant took any steps to follow-up matters with [NAME], or Pemberton. We are satisfied that if Pemberton failed the Appellant in a professional capacity, the Appellant’s source of redress is through any professional regulatory body (and not the Tribunal). 155. During the hearing, the Appellant referred to his mental ill-health. The subject of whether this was considered by HMRC was explored, at considerable length, during the hearing. Having considered the documentation and the submissions, we are satisfied that the Appellant did not disclose any medical condition that would have affected his ability to engage with HMRC, and understand the investigation, to HMRC. In this respect, we have considered the contents of the letters that were issued to the Appellant. 156. The opening letter, dated 26 February 2020, advised the Appellant that: “ More information If there is anything about your health or personal circumstances that may make it difficult for you to deal with this matter, please tell me so that I can help you in the most appropriate way. My contact details are at the top of this letter .” 157. The factsheet attached to the letter, dated 17 December 2021, from Officer Bingham to the Appellant said this: “ If you need help If you have any health or personal circumstances that may make it difficult for you to deal with this matter, please tell us. We’ll help you in whatever way we can .” 158. At no stage did the Appellant raise any health or personal circumstances that made it difficult for him to deal with the investigation, prior to the hearing. What is important to note is that the Appellant had Power of Attorney when his father’s health began to deteriorate. We find that this would not be so if the Appellant was so incapacitated so as to be unable to deal with his tax affairs. He has further provided a detailed witness statement in these proceedings, and was able to answer questions put to him during cross-examination. It is not suggested that the Appellant lacked, or lacks, capacity such that an Official Solicitor, or a Litigation Friend, was required by him. 159. The Appellant further refers to his lack of understanding as to the ability to appeal. As Moore-Bick LJ stated in Hysaj, R (in the application of) v Secretary of State for the Home Department [2014] EWCA Civ 1633 ; [2015] 1 WLR 2472 (‘ Hysaj ’) , at [44], that: “being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules” 160. In Katib , the UT concluded that the lack of experience of the appellant and the hardship that is likely to be suffered was not sufficient to displace the responsibility on the appellant to adhere to time limits. 161. The fact that the Appellant may have been let down by [NAME] does not absolve him from dealing with his tax affairs. The Appellant knew that [NAME] was not a tax adviser yet chose to continue to let her deal with HMRC whilst not providing any evidence that he was attempting to follow any matters up with Pemberton. Ms Ofili submits that whilst the Appellant has been criticised for dealing with [NAME], others (HMRC and Pemberton) had relied on her too. We find that this submission does not absolve the Appellant from his responsibilities. HMRC (particularly Officer Bingham) had re-iterated the seriousness of the investigation and the level of professional engagement needed. HMRC cannot be criticised for continuing to deal with [NAME] in circumstances where no other adviser had been engaging with HMRC. 162. During his oral evidence, the Appellant referred to receiving the “ frightening letters ”. This was at the time that the bankruptcy proceedings were being initiated. We find that this lends considerable force to HMRC’s submission that the threat of bankruptcy was the trigger to the appeal that was subsequently made. The Appellant only sought help after the bankruptcy proceedings were issued. Our conclusions above are not to suggest that the Appellant was not affected by the death of his parents, but are a balanced appraisal of all of the information before us. 163. Ms Ofili submits that the delay was not a question of inertia, but down to ignorance. We have borne in mind the comments of the FtT in Hesketh & Anor v HMRC [2018] TC 06266 (‘ Hesketh ’) (in the context of different statutory obligations), where Judge Mosedale held that Parliament intended all of its laws to be complied with, and that ignorance of the law was not an excuse. The onus is upon an appellant to ensure that they properly understand their obligations under the law. 164. In her decision in Spring Capital v HMRC [2015] UKFTT 8 (TC) (‘ Spring Capital ’), at [48], Judge Mosedale said this (in the context of reasonable excuse): “Ignorance of the law cannot, as a matter of policy, ever amount to a reasonable excuse for failing to observe the law. This is because otherwise the law would favour those who chose to remain in ignorance of it above those persons who chose to acquaint themselves with the law in order to abide by it.” 165. Similarly, in Lau v HMRC [2018] UKFTT 230 (TC) (‘ Lau ’), Judge Anne Scott held, at [37] to [38], that: “Parliament cannot have intended ignorance of the law to be a reasonable excuse because Parliament must have enacted the law with the intention that it would be obeyed. In all these circumstances, ignorance of the law simply cannot amount to a reasonable excuse.” 166. As held by Clauston J in Holland v German Property Administrator [1936] 3 All ER 6 , at p 12: “the eyes of the court are to be bandaged by the application of the maxim as to ignorantia legis.” 167. We do not have any evidence before us to support a finding that the Appellant took any steps to acquaint himself with his obligations in respect of the investigation and appeal. Ms Ofili argued that the Appellant had no “knowledge” of what was required following the decision notices. Whilst Ms Ofili’s submissions were focused in this respect, we find that this submission is of marginal probative value to the Appellant’s case. This is because, as Ms Ofili submits, the bankruptcy proceedings were the point at which the Appellant acquired the knowledge with which to make an appeal. 168. When the Appellant engaged SPW (through [NAME]), no appeal was lodged with HMRC for a further three to four months. No explanation has been given for this ongoing delay. Whilst it may be suggested that SPW were attempting to get on top of the case, the delay in then appealing to the FtT was equally not explained; which amounted to a further three months and five days after HMRC’s letter of 22 May 2024. It is not suggested that SPW were not aware of the time-limits for appealing (or indeed that an appeal could be made). 169. Whilst we acknowledge that making an appeal not only requires an awareness that an appeal can be made, but also knowledge of the grounds that can be raised, we find that there is force in Ms Lawrence’s submission that the Appellant took no more than a cursory interest in the correspondence that he received since the commencement of the investigation. As the UT stated at [58] of the decision in Katib : “…That core complaint is, unfortunately, not as uncommon as it should be. It may be that the nature of the incompetence is rather more striking, if not spectacular, than one normally sees, but that makes no difference in these circumstances. It cannot be the case that a greater degree of adviser incompetence improves one’s chances of an appeal, either by enabling the client to distance himself from the activity or otherwise. 170. Having considered all of the information before us, cumulatively, we hold that no good reason for failing to make a timely appeal has been provided. Evaluating all of the circumstances 171. We turn to the third stage in the process; that of having regard to all the circumstances and the respective prejudice to the Appellant and to HMRC. The UT in Martland made clear, as is apparent from the authorities, that the balancing exercise at this stage should take into account the particular importance of the need for litigation to be conducted efficiently and at a proportionate cost, and for statutory time limits to be respected. In that regard, we accept that if the Appellant is unable to pursue his appeal, he will not have an opportunity to challenge the decisions. 172. The case of Global Torch Ltd v Apex Global Management Ltd & Ors (No 2) [2014] 1 WLR 4495 , at [29], referred to the merits of the underlying case generally being irrelevant. As Moore-Bick LJ said in Hysaj , at [46], only where the court (or tribunal) can see without much investigation that the grounds of appeal are either very strong or very weak that the merits will have any significant part to play when it comes to balancing the various factors at stage-three of the process. That should not involve any detailed analysis of the underlying merits. 173. The figures relating to the Assessment were discussed at the settlement meeting. HMRC’s position is that the 50% reasonably attributed to the Appellant and his father was a continuation of the split that was recorded in their own previously submitted self-assessment returns. Furthermore, on 21 July 2020 and 24 July 2020, workings for the 2016 and 2017 accounts were provided by [NAME], also detailing half shares. The Appellant’s Grounds of Appeal contend that the apportionment of income between the Appellant and his late father is incorrect. The Appellant was given the opportunity to submit a counter-argument, but he did not do so. We have considered the fact that the Appellant was happy with how the investigation had been conducted. 174. We return to consider the claimed lack of advice, and the alleged failings of the agents. We have found, however, that not only did the Appellant have agents at the commencement of the investigation (i.e., Pemberton), the Appellant has not provided any documentary evidence to show the attempts that he made to contact Pemberton, and appeared to simply wait for [NAME] to contact him in circumstances where he retained responsibility of adhering to his obligations. We have found that the Appellant only sought SPW’s help once the bankruptcy proceedings were being commenced. 175. It is important that time limits are observed, and so leave to appeal out of time should, therefore, only be exceptionally granted. HMRC, and the public in general, have the right to finality in tax affairs. Where a taxpayer does not observe the time limits, that should ordinarily be the end of any dispute over liability. 176. The courts and tribunals have, consistently, emphasised the public interest in the finality of litigation, and the purpose of a time-limit being to bring finality: see, for example, Advocate General for Scotland v General Commissioners for Aberdeen City [2006] STC 1218 and Data Select . As the UT in Romasave , held, at [96]: “permission to appeal out of time should only be granted exceptionally, meaning that it should be the exception rather than the rule and not granted routinely.” 177. This was also so in Martland , at [34]: “… the purpose of the time limit is to bring finality, and that is a matter of public interest, both from the point of view of the taxpayer in question and that of the wider body of taxpayers.” 178. Despite the matters ably urged upon us by Ms Ofili, having considered all of the evidence, we are satisfied that the balance between the prejudice to the Appellant, the prejudice to HMRC and the administration of justice through the finality of litigation falls firmly on the side of an extension of time being refused. We have balanced the competing interests and the arguments presented by the parties. 179. Accordingly, therefore, we hold that the application to make a late appeal is refused. Right to apply for permission to appeal 180. 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: 02 July 2026