How to Appeal From the First Tier Tribunal (Tax) to the Upper Tribunal

This is summarised from a Ministry of Justice information sheet which can be found here. It is addressed to the taxpayer who has been party to proceedings before the First Tier Tribunal (Tax). This details what happens in an appeal.

I have added in a few comments which are in bold with reference to the HMRC v Rangers/MIH decision, in the event that HMRC pursue an appeal.

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If you won your case at the First-tier Tribunal, it is still possible for HMRC to appeal to the Upper Tribunal. The rules about applying for the full written statement of reasons and permission to appeal are equally applicable to the Respondent as to you.

If the Respondent is given permission to appeal you will be told by the First-tier Tribunal office. If they do, you will normally be paid or repaid amounts awarded to you by the First-tier tribunal, but in some cases payment maybe suspended. You will be entitled to make comments in writing before the Upper Tribunal judge decides the appeal. You will also be able to ask for an oral hearing if you wish.

I suspect this case, if appealed, will not be a paper appeal. It is an important enough issue for an oral hearing. The following section is addressed to the taxpayer, but is applicable in this instance to HMRC, rather than MIH/Rangers.

If you wish to challenge the decision of a First-tier Tribunal there are various steps that you must have taken at that tribunal before you can appeal to the Upper Tribunal.

In particular you must have:

(1) Asked for a full written statement of the First-tier Tribunal’s reasons for its decision, and

(2) Applied to the First-tier Tribunal judge for permission to appeal.

If you are appealing a Tax decision there is 56-day time limit in which to do so; this may be extended in certain circumstances. You should always ask for a written statement first, but if you do not, or you are refused one because you are too late, you must always ask the First-tier Tribunal judge for permission to appeal. Please note: if you do not ask for a written statement within the time limit your chances of appealing may be lost or seriously limited.

In this case reasons have already been issued. Therefore HMRC has 56 days from the release of the decision to the parties on 29^th October to ask for leave to appeal.

In most cases you can only appeal against the decision of a First-tier Tribunal if it was wrong in law.

Examples of where the tribunal may be wrong in law include:

The tribunal did not apply the correct law or wrongly interpreted the law.

…

You must always give full details of your reasons for appealing.

Once you have applied to the First-tier Tribunal judge for permission to appeal to the Upper Tribunal – If the First-tier Tribunal judge refuses you permission, or does not admit your application, you may apply to an Upper Tribunal (Tax and Chancery Chamber) judge for permission to appeal.

If the First-tier Tribunal judge grants you permission to appeal, you should send your appeal to the Upper Tribunal (Tax and Chancery Chamber). Details of what you need to do are set out below.

Leave to appeal is sought from the Tribunal which heard the appeal. The decision whether or not to grant leave is based on whether or not the Tribunal decides that there is a legal issue raised in the appeal. If the FTT decision was based, for exxample, only on an assessent of credibility of the witnesses, and no consideration of the law, then leave might be refused. However, where there clearly are legal matters of interpretation raised, as is the case here, then it is highly unilkely that leave would be refused.

Therefore, leave can be granted by the FTT, or if this is refused, then the Upper Tribunal can grant leave. The other party to the case, in this instance Rangers/MIH, has no input to the decision on leave to appeal before the First Tier Tribunal, but could do if HMRC was refused at the FTT and had to seek leave from the Upper Tribunal.

After the 56 day period for applying for leave, there is a further one month period after leave is refused, should that happen, to apply to the Upper Tribunal for leave. In this case, I cannot see the FTT refusing leave to appeal if asked to provide it. So I will pass over the process for seeking leave from the Upper Tribunal.

I should say that there is no right of appeal to the Court of Session in Scotland against a refusal by the Upper Tribunal of permission to appeal or refusal to admit a late application.

How to appeal to the Upper Tribunal (Tax and Chancery Chamber) once you have been granted permission to appeal

If the First-tier Tribunal judge grants you permission to appeal, the First-tier Tribunal office will send you a letter telling you. You should then send your appeal to the Upper Tribunal (Tax and Chancery Chamber) so that it is received no later than 1 month after the date of the letter notifying you of the First-tier Tribunal judge’s ruling. (You must) write a letter saying you wish to appeal and giving your reasons. If you do not do this you may lose your opportunity to appeal.

How the appeal will proceed

Once you have appealed to the Upper Tribunal (Tax and Chancery Chamber), the office will copy the appeal papers, including the notice of appeal to you and the other parties to the case (called respondents).

You will be told how the appeal is to proceed and any time limits. You and the respondents may simply be asked whether you object to the Upper Tribunal deciding the appeal on a particular point. Otherwise the respondents will normally be asked for full comments on your appeal and you will be given the opportunity to reply.

If HMRC has appealed, the Upper Tribunal (Tax and Chancery Chamber) office will ask you whether you have a representative and you (or your representative) will be asked if you wish to make comments on the appeal.

I suspect that Rangers/MIH would want to make some comments!

You should note that all comments or observations made by one party will be copied to all the other parties. At the same time the office will send out letters explaining what, if anything, needs to be done next.

Will there be an oral hearing of the appeal?

Appeals in the Upper Tribunal (Tax and Chancery Chamber) can be decided with or without an oral hearing. If the appeal has been made by someone else and you are a respondent, and the judge decides to have an oral hearing you will be told about it and will be entitled to attend even if you did not ask for a hearing.

An Upper Tribunal judge can direct an oral hearing be held even though no one has asked for one. Oral hearings are usually held in London, Manchester and Edinburgh.

What will happen if there is an oral hearing?

Once the date for an oral hearing has been set, you will be sent a letter with details of the date, time and place.

You must normally be given at least 14 days notice of the date of a hearing unless both you and the Respondent have agreed to shorter notice. However you will usually be given more notice.

Oral hearings are normally in public unless the judge directs a private hearing. However, it is unusual for members of the public to come to hearings. If you would like your hearing to be private, you should say why and the judge will decide this.

Your representative (if you have one) and any respondents to your appeal will also be entitled to attend the oral hearing and will be told about it.

Where a case raises a particularly important or difficult point of law, it may be heard by three judges instead of one. However, this is very rare.

It may be rare, but I think this will be one of those rare cases, both for the public interest issues but more so for the consideration of the Ramsay principles.

Withdrawal of Appeals

If HMRC, SOCA or the Charity Commission has appealed you cannot withdraw from the appeal. You do not need to take any part but a decision will be made whether or not you do take part.

So, the Upper Tribunal will consider the Appeal even if Rangers/MIH failed to take part. It is not automatic that an undefended appeal will be granted in favour of the party who turns up. As I say, if this proceeds, I am sure that Rangers/MIH will be represented.

The judge’s decision

The judge will always give his or her decision in writing. The Upper Tribunal (Tax and Chancery Chamber) office will send you a copy of the judge’s decision. They will also send a copy to your representative if you have one and to the other parties to the appeal.

The judge must give reasons for the appeal being allowed or dismissed unless all the parties have agreed otherwise. If the judge has sent the case back to be re-decided by the First-tier Tribunal, you will receive a letter from the First-tier Tribunal clerk.

If the Upper Tribunal judge dismisses your appeal, or the result of the appeal is not wholly favourable to you, you have the right to appeal to the Court of Session.

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How Long Does This All Take?

In general, it takes the Upper Tribunal judge around 3-6 months to issue a decision after hearing an appeal. The appeal hearing itself would normally be listed to take place between 12 and 24 months after the decision which is being appealed against. This is simply a function of the number of appeals, as opposed to the number of judges able to hear these cases.

The First Tier Tribunal (Tax) decides over 700 cases a year, and in addition, there are appeals marked which are withdrawn before a decision is reached.

The Upper Tribunal (Tax and Chancery) decides around 100 cases per year.

This case, if appealed, is going to run and run…

And the Upper Tribunal decision can be appealed to the Court of Session and thence to the Supreme Court.

If this case was to end up at the Supreme Court, looking at the time taken for other cases to arrive there, it might not reach the court until 2016 or 2017!

What fun! The new Jarndyce v Jarndyce!

Posted by Paul McConville

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