Tax Appeal Dismissed: Why Not Sending a Valid Notice to HMRC Can Stop Your Case

Neutral Citation: [2026] UKFTT 00994 (TC) Case Number: TC 09939 FIRST-TIER TRIBUNAL TAX CHAMBER Manchester Employment Tribunal Appeal reference: TC/2025/02316 INCOME TAX – member unauthorised payments – strike out – late appeal Heard on: 21 May 2026 Judgment date: 02 July 2026 Before TRIBUNAL JUDGE HARRISON Between [APPELLANT] Appellant and THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS Respondents Representation: For [APPELLANT]: [NAME] For HMRC: [NAME], of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs DECISION Introduction 1. This appeal concerns whether the Tribunal has jurisdiction to determine a challenge brought by the Appellant (“ [APPELLANT] ”) against a closure notice issued by the Respondents (“ HMRC ”) on 11 January 2023. [APPELLANT] had entered into a series of transactions which HMRC contend result in him being taxed in respect of an unauthorised member payment.

2. HMRC applied for the appeal to be struck out as: (1) No valid notice of appeal was given by [APPELLANT] to HMRC before the appeal was made to the Tribunal. (2) Even if a valid notice of appeal had been given to HMRC, such notice was given out of time, and the Tribunal should not exercise its discretion to allow the appeal out of time.

3. By way of background, the tax appeal is not the only litigation ongoing in respect of the subject matter of this appeal. The Tribunal was told that following a lengthy trial, the trustees of the BTS Workplace Pension Trust were acquitted of criminal charges.

4. The Tribunal was provided with an Appellant bundle of documents of 110 pages, a Respondent bundle of documents of 411 pages, an Appellant authorities bundle of 170 pages, a Respondent authorities bundle of 86 arguments, a skeleton argument from [APPELLANT] of 10 pages and a HMRC skeleton argument of 14 pages.

5. The Tribunal was also assisted by in person witness evidence provided by [NAME] and [NAME], both of whom were cross-examined. The Tribunal found both witnesses to be truthful and appreciated their evidence. Issues for determination 6. The issues for determination by the Tribunal were: (1) Whether a valid closure notice was issued. (2) Whether the Tribunal had jurisdiction to hear the appeal. (3) If the Tribunal had jurisdiction to hear the appeal, whether the Tribunal should exercise its discretion to accept the appeal late. (4) If the Tribunal did not have jurisdiction to hear the appeal, whether the appeal should be struck out. Findings of fact 7. There were areas of disagreement between the parties on the factual background. The Tribunal finds the following facts. Where a fact was disputed, this is stated. Otherwise the facts were not in dispute. The substantive matters under appeal 8. In 2016, [APPELLANT] transferred approximately £323,693 from one pension scheme (Total UK Pension Scheme) into another pension scheme (BTS Workplace Pension Trust).

9. The BTS Workplace Pension Trust made several investments using [APPELLANT]’s funds.

10. Shortly thereafter, [APPELLANT] received of a loan of approximately £156,000. HMRC’s position is that the funds received by [APPELLANT] pursuant to this loan were, in substance, derived from the pension transfer via third-party entities and constituted an unauthorised member payment under the Finance Act 2004 . 11. [APPELLANT]’s position is that the loan is a normal loan, unconnected with the pension transfer and investments by the BTS Workplace Pension Trust, which he repaid in February 2022. As a result, [APPELLANT]’s position is that he should not be taxed under the unauthorised member payment rules. Enquiry and correspondence 12. [APPELLANT] filed his self-assessment return for the year ended 5 April 2017 on 29 January 2018.

13. HMRC opened an enquiry on 18 January 2019 under section 9A TMA into [APPELLANT]’s pension transfer arrangements.

14. On 29 November 2019, HMRC issued a determination asserting an unauthorised payment and tax liability of approximately £86,113.50.

15. On 11 January 2023, HMRC issued a closure notice amending the return and specifying that any appeal must be made in writing to HMRC within 30 days (i.e. by 10 February 2023). This notice stated that: “This letter is a ‘final closure notice’. It’s your formal notification that we have completed our check of your tax return for the year shown above. We’re sending it to you under section 28 A(1B) and (2) of the Taxes Management Act 1970 . …. Our conclusion The payment of £156,570 you received from Xtend Trading Limited on 1 July 2016 is an unauthorised payment as it was paid in connection with an unauthorised payment made by the BTS Workplace Pension Trust. The payment was not declared on your tax return as required . The return therefore needs amending to include an unauthorised payment subject to a surcharge. … This final closure notice amends your Self Assessment tax return for the year ended 5 April 2017. It amends it based on our conclusion shown above. How your return has been amended Your return has been amended to include an unauthorised payment subject to a surcharge of £156,570. Before this amendment your tax return showed tax due of: £0.00 After this amendment your tax return shows tax due of: £86,113.50 The difference between these amounts is: £86,113.50 The difference of £86,113.50 is the result of the amendment to your Self Assessment tax return made by this final closure notice. A copy of our tax calculations is enclosed with this letter.” 16. On 13 February 2023, [APPELLANT] wrote to HMRC. This letter (the “ CK February 2023 Letter ”) read as follows: “Dear [NAME], RE: CFS -1637381 With reference to your letter dated 11th January 2023 (copy attached), could you please confirm in writing you have received correspondence from my legal representative [NAME] on this matter. Yours faithfully” 17. HMRC replied on 20 February 2023 indicating that no such correspondence had been received and that their records did not show [NAME] as [APPELLANT]’s authorised representative (rather HMRC systems showed another agent as the authorised representative).

18. On 25 February 2023, [NAME] replied to HMRC on behalf of [APPELLANT] (the “ KM February 2023 Letter ”) and enclosed a letter she had previously sent HMRC dated 22 December 2022. HMRC’s position is that they did not receive the KM February 2023 Letter, and [NAME] was not [APPELLANT]’s authorised representative at the relevant time. HMRC accept that if they had received the KM February 2023 Letter and had [NAME] been [APPELLANT]’s authorised representative, it would have been a valid notice of appeal against both the income tax imposed on [APPELLANT] and the question of whether the surcharge conditions are met. HMRC’s position is that the KM February 2023 Letter is not a notice of appeal against HMRC’s refusal to exercise its discretion regarding the surcharge. 19. [APPELLANT]’s position is that [NAME] sent the KM February 2023 Letter to HMRC by both post and email. The KM February 2023 Letter is addressed to [NAME] and sets out his address. In her evidence [NAME] confirmed that she had paid the correct postage on the letter and addressed and posted the letter herself. She did not obtain proof of postage or require the letter to be signed for. Despite this, the Tribunal accepts that [NAME] sent the KM February 2023 Letter by post to HMRC, and that she had paid the correct postage and sent it to the address set out on the letter. 20. [NAME] also told the Tribunal that she had emailed the KM February 2023 Letter and received a delivery receipt. [NAME] explained that around the time of sending the KM February 2023 Letter by email, she had some technical issues with sending emails. The KM February 2023 Letter does not state that it will be sent by email, or indicate the email address to which it will be sent. Since the Tribunal was not provided with a copy of this email or the delivery receipt, [NAME] acknowledged she had had technical issues with emails at the relevant time and [NAME]’s evidence is that he did not receive this email, on balance the Tribunal is not satisfied that [NAME] sent this email successfully.

21. HMRC’s position is that they did not receive the KM February 2023 Letter. [NAME]’s witness evidence, which was unchallenged, was that he had searched the various HMRC systems and could not find any evidence that the KM February 2023 Letter had been received by HMRC. [NAME] acknowledged there had been a misspelling of [NAME]’s name in his witness statement and confirmed that he had used the correct spelling when searching the HMRC systems. [NAME] also confirmed that he was not aware of HMRC not receiving correspondence sent to HMRC. As a result of [NAME]’s evidence (which was clear, consistent and unchallenged), the Tribunal finds that HMRC did not receive the KM February 2023 Letter. 22. [NAME] told the Tribunal that [APPELLANT] had sent authorisation for her to act as agent in 2020 to HMRC. The Tribunal was not provided with any evidence that [APPELLANT] had sent this authorisation. HMRC’s letter of 20 February 2023 (see paragraph 17 above) indicated that Respondents had not received that authorisation, and [APPELLANT] had not disputed that fact at the time. In addition, [NAME]’s unchallenged witness evidence was that he had searched the various HMRC systems and could not find any evidence that HMRC had received the authorisation of [NAME]. [NAME] confirmed that a form T239 authorising [NAME] to act as [APPELLANT]’s agent was received by HMRC on 13 May 2026. Given that, the Tribunal finds that HMRC did not receive the authorisation prior to 13 May 2024, regardless of whether it was sent. While formal authorisation was not in place at the time, that does not in principle prevent a notice of appeal being given on behalf of a taxpayer. However, that issue is not determinative in this case. Tribunal proceedings 23. [APPELLANT] filed an appeal with the Tribunal on 8 July 2025. Procedural points 24. A number of procedural points were raised by the parties during the hearing. We have dealt with the key applications below Appeal already struck out 25. HMRC submitted in its written arguments that the appeal had already been struck out pursuant to an unless order dated 30 October 2025. This ground was withdrawn on the basis that during the hearing HMRC was provided with an email from [NAME] (which had been copied to HMRC) which evidenced that [APPELLANT] had complied with the unless order within the time limit. Additional argument raised by [APPELLANT]

26. During the hearing [APPELLANT] submitted that no valid closure notice had ever been issued. Although this argument was not dealt with in [APPELLANT]’s skeleton argument, the Tribunal allowed this argument to be determined, on the basis that: (1) Section 5.1 of the Notice of Appeal document stated “we have never received a final conclusion letter” and [APPELLANT]’s response to HMRC’s objection to the late appeal stated that “the Closure Notice itself invited [APPELLANT] to apply under s268 FA 2004 , giving the impression the process remained open and not concluded.”, such that [APPELLANT] had indicated some concerns around the validity of the closure notice prior to the hearing; (2) HMRC raised no objection to the Tribunal determining this issue and made submissions as to their position on this argument; and (3) The Tribunal considered that determining this issue as part of the hearing, was consistent with the overriding objective, to deal with cases fairly and justly, including avoiding delay, and was compatible with the proper consideration of the issue. Admission of additional evidence following the hearing 27. [APPELLANT] applied to admit evidence that [NAME] had been appointed as his authorised representative and that [APPELLANT] had been in dialogue with HMRC between April 2020 and December 2022. 28. [NAME] initially hoped she would be able to share those documents with HMRC and the Tribunal during the lunchbreak. Unfortunately [NAME] was unable to access these documents during the hearing day and applied to be permitted to share these with HMRC and the Tribunal after the hearing.

29. The Tribunal refused to allow for evidence to be submitted after the hearing. It is fundamental to a fair hearing to allow both parties the opportunity to review and respond to the other party’s case, and the evidence that underpins that case. [APPELLANT] had been given the opportunity to provide evidence in advance of the hearing, and had not provided these documents. As such it would have been contrary to the overriding objective to admit such evidence. Decision Was the closure notice validly issued? Background and parties’ positions 30. HMRC contended that the letter dated 11 January 2023 satisfied the requirements of section 28 A TMA to be a valid closure notice. 31. [APPELLANT] submitted that the letter dated 11 January 2023 from HMRC was not a valid closure notice on the basis that this letter was written at a time when criminal proceedings were ongoing in relation to [APPELLANT] pension transfer arrangements, and HMRC had repeatedly stated that no substantive progress of the tax appeal would take place until the criminal proceedings had reached resolution. Given this [APPELLANT] reasonably believed that the tax dispute was effectively stayed pending the conclusion of the criminal trial. The law 32. Section 28 TMA states the following in respect of a closure notice: “1) This section applies in relation to an enquiry under  section 9 A(1)  of this Act . (1A) Any matter to which the enquiry relates is completed when an officer of Revenue and Customs informs the taxpayer by notice (a "partial closure notice") that the officer has completed his enquiries into that matter. (1B) The enquiry is completed when an officer of Revenue and Customs informs the taxpayer by notice (a "final closure notice")— (a) in a case where no partial closure notice has been given, that the officer has completed his enquiries, or (b) in a case where one or more partial closure notices have been given, that the officer has completed his remaining enquiries. (2) A partial or final closure notice must state the officer's conclusions and – (a) state that in the officer's opinion no amendment of the return is required, or (b) make the amendments of the return required to give effect to his conclusions. (3) A partial or final closure notice takes effect when it is issued.” Discussion and decision 33. It was accepted by both parties that [APPELLANT] had received (and responded to) the letter dated 11 January 2023 (this letter was the closure notice).

34. From a review of the wording of the closure notice (which was included in the hearing bundles) the closure notice states that the enquiry has been completed, sets out HMRC’s conclusions and the amendments to [APPELLANT]’s return. As a result, each statutory requirement is expressly satisfied on the face of the closure notice itself. Accordingly, on the balance of probabilities, the Tribunal is satisfied that the closure notice was validly issued.

35. The Tribunal was not provided with any evidence of discussions between the parties that the tax dispute would be effectively stayed pending the resolution of the criminal proceedings. However, even if we accepted those discussions occurred, it would not impact our conclusion. It is not unusual for appeals to be filed and then stayed pending other appeals, or to give the parties an opportunity to reach a settlement. An agreement to make no substantive progress on an appeal whilst another case progresses, does not affect the validity of the closure notice. Jurisdiction to hear appeal Background and parties’ positions 36. HMRC contend that [APPELLANT] did not give written notice of appeal to HMRC as required by section 49 D of the Taxes Management Act 1970 (“ TMA ”) but instead gave notice of appeal only to the Tribunal. HMRC argue that, as the statutory requirements for notifying an appeal to the Tribunal have not been satisfied, as [APPELLANT] has failed to follow the procedure set out in the relevant legislation, the appeal must be struck out. 37. [APPELLANT] contends that: (1) The CK February 2023 Letter meets the statutory requirements for notifying an appeal, when viewed correctly against the continuous back and forth correspondence. (2) The KM February 2023 Letter meets the statutory requirements for notifying an appeal. (3) Even if neither the CK February 2023 Letter nor the KM February 2023 Letter meet the statutory requirements, the Tribunal has jurisdiction (applying the principles in Martland v HMRC [2018] UKUT 178 (TCC) and Denton v TH White Ltd [2014] EWCA Civ 906 and the overriding objective) to exercise its discretion and to refuse to strike out the appeal.

38. HMRC disagree on the following basis: (1) Section 31A TMA states that a notice of appeal must be given in writing, within 30 days after the specified date to HMRC. Section 49 D(2) TMA states that [APPELLANT] may notify the appeal to the Tribunal. However, section 49 D(1) TMA states this section applies if notice of the appeal has been given to HMRC. HMRC contend that the Tribunal has no jurisdiction to determine the appeal, as no notice of appeal was given to them in the first instance, as required by the legislation. (2) The CK February 2023 Letter does not meet the statutory requirements for notifying an appeal, as it does not contain any indication that [APPELLANT] wishes to appeal the closure notice or any grounds of appeal. (3) Although HMRC accept that the KM February 2023 Letter contains sufficient information to notify the appeal, it does not meet the statutory requirements as (a) [NAME] was not authorised as [APPELLANT]’s representative at the time; and (b) the KM February 2023 Letter was not received by HMRC. The law 39. Rule 8(2) of the Tribunal Procedure (FTT) (Tax Chamber) Rules 2009 (the “ Tribunal Rules ”) reads as follows: “The Tribunal must strike out the whole or a part of the proceedings if the Tribunal— (a) does not have jurisdiction in relation to the proceedings or that part of them; and (b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.” 40. Section 31 TMA 1970  provides for rights of appeal against closure notices.

41. Section 31 A(1) TMA 1970  provides that notice of an appeal under  section 31  must be given in writing, within 30 days of the specified date, and to the relevant officer of HMRC. The specified date is the date of issue of the assessment or determination, and the notice of appeal must specify the grounds of appeal.

42. Section 49 D TMA 1970  provides that an appellant may notify an appeal to the Tribunal only where notice of appeal has first been given to HMRC. The appeal must be in writing (  s. 31 TMA 1970  ) and the notice of appeal must be given to the relevant officer of the Board i.e. the officer who issued the decision ( section 31 A TMA 1970  ).

43. Section 49 I(1)(b) TMA provides that a reference to a notification is a reference to a notification in writing. Section 115(2) TMA 1970 and section 7 Interpretation Act 1978 provide for “giving” of notice to be by post: “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”. Discussion and decision 44. The basis of HMRC’s application for the appeal to be struck out under Rule 8(2)(a) of the Tribunal Rules is that no appeal has been notified to HMRC prior to being lodged with the Tribunal, as required by section 49 D TMA.

45. The Tribunal considers that the requirement to notify HMRC must start with the date of the closure notice and end with the date the appeal is made to the Tribunal. In this case, this means that the relevant correspondence must be dated between 11 January 2023 and 8 July 2025. Both the CK February 2023 Letter and the KM February 2023 Letter meet that requirement.

46. Although there is no specific form of wording required to notify an appeal to HMRC, the Tribunal considers that to be a valid notice of appeal, the document must make it clear, judged objectively that the taxpayer is intending to appeal a specific decision made by HMRC.

47. On the facts, the Tribunal considers that nothing in the CK February 2023 Letter indicates that [APPELLANT] wished to appeal. [APPELLANT] submitted that this letter should be interpreted in the light of the correspondence between [APPELLANT] and HMRC sent before the CK February 2023 Letter. Although there was correspondence prior to the issue of the closure notice between [APPELLANT] and HMRC in which [APPELLANT] indicated that he disagreed with HMRC’s position, this correspondence is not such that a letter which simply asks whether HMRC have received correspondence from [NAME] can be construed as giving notice of appeal. Viewed objectively, taking into account its terms, context and purpose, no person reading the CK February 2023 Letter would understand that [APPELLANT] wished to appeal the closure notice. As a result, the Tribunal finds that the CK February 2023 Letter does not meet the statutory requirements to notify the appeal to HMRC.

48. The parties have agreed that the wording of the KM February 2023 Letter is such that it does notify the appeal to HMRC.

49. HMRC submit (as set out above) that the KM February 2023 Letter is not a valid notice of appeal because they did not receive it. The burden to show that the KM February 2023 Letter was sent originally sits with [APPELLANT].

50. Although [NAME] sent the KM February 2023 Letter by email, the Tribunal is not satisfied that this email was sent successfully (see paragraph 20). Accordingly, the Tribunal finds that the KM February 2023 Letter was not ‘given’ to HMRC by email.

51. However, the Tribunal is satisfied that [NAME] sent the KM February 2023 Letter by post (see paragraph 19). The effect of this and section 7 Interpretation Act 1978 is to deem HMRC to have received the letter unless they can prove they did not receive the letter (in effect, section 7 creates a rebuttable presumption that HMRC did receive the letter). 52. [NAME]’s evidence (which was unchallenged and which we accept in full) is that HMRC did not in fact receive the KM February 2023 Letter. This means that the Tribunal is satisfied that HMRC has rebutted the presumption that they received the KM February 2023 Letter. [NAME] confirmed that he had undertaken systems searches which did not locate the KM February 2023 Letter, that HMRC has procedures to ensure correspondence is logged and that he was not aware of any systemic failures which undermine the conclusion that HMRC did not receive the letter. Accordingly, on the balance of probabilities the KM February 2023 Letter did not notify the appeal. The Tribunal is satisfied that clear and cogent evidence is required to rebut the presumption of delivery, and that [NAME]’s evidence meets that standard and that there is no credible evidence to the contrary.

53. HMRC also argued that as [NAME] was not [APPELLANT]’s authorised representative she could not give a valid notice of appeal on his behalf. We were not provided with any authority to support that proposition. In the Tribunal’s view, where it is clear to HMRC that a representative is acting for a taxpayer, the lack of formal authorisation should not prevent a notice of appeal being validly given by the taxpayer. HMRC were expressly told by the taxpayer in the CK February 2023 Letter that [NAME] was acting for him. As a result, the Tribunal does not consider the lack of formal authorisation prevented [NAME] from giving a valid notice of appeal.

54. The Tribunal does not consider that it has any discretion where no valid notice of appeal is given. The cases of Martland and Denton apply where a taxpayer has given a valid notice to HMRC that it wishes to appeal before notifying the Tribunal of the appeal. Or put another way, Martland and Denton are relevant where the Tribunal has jurisdiction to hear the appeal and is deciding whether to agree to hear an appeal that was made late.

55. In this appeal, the taxpayer has not given a valid notice to HMRC that it wishes to appeal. The effect of this is that the Tribunal does not have jurisdiction to hear the appeal. The Tribunal therefore cannot exercise discretion whether to hear this appeal late. The statutory scheme is sequential and mandatory; compliance with section 31 A is a condition precedent to engaging the Tribunal’s jurisdiction under section 49 D TMA.

56. The Tribunal therefore finds that: (1) The CK February 2023 Letter did not constitute a notice of appeal because judged objectively it did not demonstrate an intention to appeal any decision of HMRC. (2) The KM February 2023 Letter, although containing sufficient content, was not “given” to HMRC because it was not received and the presumption of service is rebutted. (3) Accordingly, no notice of appeal was given to HMRC within section 31 A TMA, with the result that the statutory precondition in section 49 D is not satisfied. (4) The Tribunal therefore lacks jurisdiction and must strike out the appeal under Rule 8(2)(a).

57. Even if the Tribunal were wrong in any individual aspect of its reasoning, the cumulative effect of the findings above leads to the same conclusion that no valid notice of appeal was given. Discretion to admit the appeal late 58. Both parties accepted that if the KM February 2023 Letter was a notice of appeal, it was made outside of the 30-day time limit. As a result, both parties made submissions as to whether the Tribunal should exercise its discretion to allow such appeal to proceed late.

59. Given that the Tribunal is required to strike-out this appeal for the reasons given above, it is not necessary to consider whether (if the Tribunal had not been required to strike out the appeal) it would have exercised its discretion to accept the appeal late. Conclusion 60. The Tribunal finds as follows: (1) The closure notice issued on 11 January 2023 is valid. (2) No valid notice of appeal was given to HMRC before the appeal was notified to the Tribunal. (3) As a result, the Tribunal does not have jurisdiction to hear the underlying appeal, and is therefore required by the Tribunal Rules to strike-out the appeal.

61. Accordingly, the appeal is struck out. Right to apply for permission to appeal 62. 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