Judgment summary
This is a decision on an application for permission to appeal to the Upper Tribunal (Tax and Chancery) Chamber. Mr Cenkci sought permission to appeal against a First-tier Tribunal decision issued on 9 March 2023, which had refused him permission to make a late appeal against capital gains tax assessments issued by HMRC on 20 July 2020 (paras 1, 9).
Judge Redston had previously refused permission on the papers and was asked to reconsider at an oral hearing held on 30 June 2026, based on amended grounds of appeal drafted by Mr Colm Kelly of Counsel (paras 2-3). HMRC did not attend or make submissions at the hearing (para 3).
The Tribunal considered the Main Ground, which alleged that Mr Cenkci's former accountant, Ms Nihat, had deceived him and the FTT, and that her death meant the Decision should be set aside as his only remedy (paras 19, 36). The Tribunal also considered submissions on time limits for two discovery assessments and the public interest in taxpayers paying the correct amount of tax (paras 39, 41).
Permission to appeal was refused (para 43).
Background
Mr Cenkci owned residential properties and received rental income. His accountant of over 30 years, Ms Nihat of HV Akin & Co, completed his tax returns, which he did not check, trusting her to do so (para 8).
On 20 July 2020, HMRC issued Mr Cenkci with assessments to capital gains tax. Ms Nihat contacted HMRC's Debt Management and Banking team on 9 February 2021 stating she had made an appeal on his behalf, and later sent a copy of a purported appeal letter dated 27 July 2020 (paras 9-10).
HMRC refused to admit the appeals as late. Ms Nihat applied to the FTT. Mr Cenkci did not attend the FTT hearing on 7 November 2022 before Judge McGregor because Ms Nihat told him it was a simple procedural matter (para 11).
Judge McGregor found Ms Nihat had not proved the appeal was made on or around 27 July 2020; it was not made until 23 April 2021 and was therefore late. Applying Martland v HMRC [2018] UKUT 178, she found the merits of the substantive appeal, concerning principal private residence relief, were very low, given the absence of evidence and lack of engagement with HMRC's requests for information (paras 12-13). The FTT issued the Decision on 9 March 2023, refusing the late appeal application ([2023] UKFTT 270 (TC)) (para 13).
Ms Nihat passed away in February 2024 and her firm ceased trading. Mr Cenkci instructed new accountants, CWA Accountants Ltd, who applied for permission to appeal the Decision on 22 January 2025, very significantly late (para 14). On 5 September 2025, Judge McGregor refused permission for the late application, and indicated she would have refused the substantive PTA application in any event, noting inconsistencies in Mr Cenkci's account of his lack of knowledge of Ms Nihat's unresponsiveness (para 15).
On 29 September 2025, CWA made an in-time application to the UT for permission to appeal. On 6 March 2026, Collyer Bristow submitted a 'final application' containing new grounds drafted by Mr Kelly, which the judge initially declined to consider on the papers but later admitted at the oral hearing as an amendment to the CWA grounds (paras 16-18).
Core dispute
The core dispute was whether the FTT had erred in law, or whether there was some other compelling reason, in refusing Mr Cenkci permission to make a late appeal against the capital gains tax assessments.
Mr Kelly's Main Ground argued that Ms Nihat had deliberately misled and deceived both Mr Cenkci and the FTT, that her conduct fell outside the general guidance in HMRC v Katib [2019] UKUT 0189 (TCC), that the FTT's Decision was based on an inaccurate and incomplete understanding of the facts as a result, and that because Ms Nihat had died, Mr Cenkci's only remedy was for the Decision to be set aside (para 19).
Mr Kelly also raised the time limits applicable to two discovery assessments relating to 2007-08 and 2010-11, arguing HMRC bore the burden of showing deliberate conduct given they were more than six years old, and referred to the public interest in taxpayers paying the correct amount of tax (paras 20, 39, 41).
Court findings
The Tribunal held that none of the points in the Main Ground had been put to the FTT: Judge McGregor had not been told Ms Nihat misled or deceived Mr Cenkci, and none of Mr Cenkci's witness evidence had been before the FTT. It is not an error of law for a tribunal not to consider a submission never made or evidence not put before it (paras 21-22).
On the allegation of deceit, the Tribunal found neither example relied on by Mr Kelly supported a finding of deceit. The FTT had not found Ms Nihat dishonest, only that she had failed to discharge the burden of proof on timing, and her evidence was that she believed the appeal letter had been sent (paras 24-26).
Even if Ms Nihat had deceived Mr Cenkci, this would not change the outcome, because under Katib, failures by a litigant's adviser are generally treated as failures by the litigant, guidance subsequently approved by the Court of Appeal in HMRC v Medpro [2026] EWCA Civ 14 at [57]. The Tribunal found Mr Cenkci's allegations against Ms Nihat comparable to those made by Mr Katib against his adviser Mr Bridger, which had not taken that case outside the general guidance (paras 27-30).
On Mr Cenkci's witness evidence, the Tribunal found that, applying Martland at [46], had he given evidence it would likely have been in dispute and subject to cross-examination, so its absence from the FTT hearing was of little relevance (paras 31-34).
On Ms Nihat's death, the Tribunal held that allowing this to found a remedy would advantage a taxpayer whose adviser died or became bankrupt compared to other taxpayers, which would not be in the interests of justice. It is for litigants to be aware of their rights against advisers on a timely basis (paras 36-37).
On time limits, there was no evidence the point regarding the six-year assessments had been pleaded before HMRC or the FTT, and it is not an error of law to fail to consider an unpleaded point (paras 39-40).
On the public interest submission, the Tribunal held that the principle of taxpayers paying the correct amount of tax does not allow taxpayers to bypass procedural requirements and statutory time limits (paras 41-42).
Outcome
The Upper Tribunal found that the Main Ground did not identify an arguable error of law and did not disclose another compelling reason to give permission to appeal. There was no error of law in the Decision and no other compelling reason to grant permission (paras 38, 42).
Permission to appeal was refused (para 43).
Major issues / areas of contention
- Whether the FTT erred in law in refusing permission for a late appeal against capital gains tax assessments.
- Whether Mr Cenkci's accountant, Ms Nihat, deliberately misled or deceived him and the FTT regarding the timing of the appeal.
- Whether the general guidance in HMRC v Katib on treating adviser failures as failures of the litigant applied, or whether Ms Nihat's conduct fell outside it.
- Whether the death of Ms Nihat, removing Mr Cenkci's remedy against her, was a compelling reason to set aside the FTT Decision.
- Whether Mr Cenkci's witness evidence, not before the FTT, could be relied upon in the permission application.
- Whether a time limit point concerning discovery assessments for 2007-08 and 2010-11 had been pleaded before the FTT.
- Whether the public interest in taxpayers paying the correct amount of tax justified permission to appeal despite procedural non-compliance.