Judgment summary
This decision concerns an appeal by Mr Christopher Kippax against a closure notice issued by HMRC on 11 January 2023, which amended his self-assessment return to include an unauthorised member payment of £156,570, resulting in tax due of £86,113.50 (para 15).
HMRC applied for the appeal to be struck out on the basis that no valid notice of appeal had been given to HMRC before the appeal was lodged with the Tribunal, and that even if a valid notice had been given, it was out of time (para 2).
The Tribunal considered whether the closure notice was validly issued, whether it had jurisdiction to hear the appeal, and, if so, whether to exercise discretion to admit a late appeal (para 6).
Background
In 2016, Mr Kippax transferred approximately £323,693 from the Total UK Pension Scheme into the BTS Workplace Pension Trust, which made several investments using his funds (paras 8-9).
Shortly afterwards, Mr Kippax received a loan of approximately £156,000, which HMRC contend was, in substance, derived from the pension transfer via third-party entities and constituted an unauthorised member payment under the Finance Act 2004 (para 10). Mr Kippax's position was that the loan was a normal loan, unconnected with the pension transfer, and that he repaid it in February 2022 (para 11).
Mr Kippax filed his self-assessment return for the year ended 5 April 2017 on 29 January 2018 (para 12). HMRC opened an enquiry under section 9A TMA on 18 January 2019 (para 13), issued a determination on 29 November 2019 asserting a tax liability of approximately £86,113.50 (para 14), and issued the closure notice on 11 January 2023, requiring any appeal to be made in writing within 30 days, by 10 February 2023 (para 15).
Mr Kippax wrote to HMRC on 13 February 2023 (the 'CK February 2023 Letter'), and Mrs McIntyre, acting on his behalf, wrote to HMRC on 25 February 2023 (the 'KM February 2023 Letter') (paras 16-18). HMRC's position was that they had not received the KM February 2023 Letter and that Mrs McIntyre was not Mr Kippax's authorised representative at the relevant time (para 18). Mr Kippax appealed to the Tribunal on 8 July 2025 (para 23).
Core dispute
The dispute centred on whether the Tribunal had jurisdiction to determine Mr Kippax's challenge to the closure notice, given the requirements under sections 31A and 49D TMA that a valid notice of appeal be given to HMRC before an appeal is notified to the Tribunal (paras 36-38).
HMRC contended that neither the CK February 2023 Letter nor the KM February 2023 Letter constituted a valid notice of appeal received by HMRC, and that the appeal should therefore be struck out under Rule 8(2) of the Tribunal Rules (paras 36, 38).
Mr Kippax argued that the CK February 2023 Letter, read in light of prior correspondence, met the statutory requirements, that the KM February 2023 Letter also met those requirements, and that, in the alternative, the Tribunal should exercise its discretion under the principles in Martland v HMRC [2018] UKUT 178 (TCC) and Denton v TH White Ltd [2014] EWCA Civ 906 to allow a late appeal (para 37).
Mr Kippax also raised, during the hearing, an additional argument that no valid closure notice had ever been issued, partly because he believed the tax dispute was stayed pending the conclusion of related criminal proceedings against trustees of the BTS Workplace Pension Trust (paras 3, 26, 31).
Court findings
The Tribunal found that the closure notice dated 11 January 2023 satisfied each statutory requirement of section 28 TMA on its face, stating that the enquiry was completed, setting out HMRC's conclusions, and specifying the amendments to the return; it was therefore validly issued (paras 33-34). The Tribunal found no evidence of an agreement to stay the tax dispute pending the criminal proceedings, and held that even if such an agreement existed, it would not affect the validity of the closure notice (para 35).
On notice of appeal, the Tribunal found that the CK February 2023 Letter did not, viewed objectively, demonstrate an intention to appeal the closure notice, and so did not meet the statutory requirements (para 47). The Tribunal found that the KM February 2023 Letter did contain sufficient content to notify an appeal, and that Mrs McIntyre had sent it by post, correctly addressed and stamped, engaging the presumption of service under section 7 Interpretation Act 1978 (paras 48, 51). However, the Tribunal accepted Mr Hunt's unchallenged evidence that HMRC had not in fact received the letter, and found this evidence sufficient, as clear and cogent, to rebut the statutory presumption of delivery (paras 52, 21).
The Tribunal further found that the lack of formal authorisation for Mrs McIntyre to act as Mr Kippax's representative did not, in principle, prevent a valid notice of appeal being given on his behalf, since HMRC had been told in the CK February 2023 Letter that she was acting for him (para 53).
The Tribunal held that it had no discretion to admit a late appeal where no valid notice of appeal had first been given to HMRC, and that the principles in Martland and Denton apply only once jurisdiction is established; compliance with section 31A is a condition precedent to the Tribunal's jurisdiction under section 49D TMA (paras 54-55).
Outcome
The Tribunal found that the closure notice issued on 11 January 2023 was valid, that no valid notice of appeal was given to HMRC before the appeal was notified to the Tribunal, and that the Tribunal therefore lacked jurisdiction to hear the underlying appeal (para 60).
As a result, the appeal was struck out pursuant to Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (paras 60-61).
Because the appeal was struck out for lack of jurisdiction, the Tribunal did not need to consider whether it would have exercised its discretion to admit a late appeal (para 59).
Major issues / areas of contention
- Whether a valid closure notice was issued by HMRC on 11 January 2023 (para 6).
- Whether the Tribunal had jurisdiction to hear the appeal given the requirements of sections 31A and 49D TMA (para 6).
- Whether the CK February 2023 Letter constituted a valid notice of appeal to HMRC (paras 37, 47).
- Whether the KM February 2023 Letter constituted a valid notice of appeal, including whether it was actually received by HMRC and whether the statutory presumption of postal service was rebutted (paras 48-52).
- Whether the lack of formal authorisation for Mrs McIntyre as Mr Kippax's representative prevented a valid notice of appeal being given on his behalf (para 53).
- If the Tribunal had jurisdiction, whether it should exercise discretion to admit the appeal out of time applying Martland v HMRC and Denton v TH White Ltd principles (paras 37, 58-59).