Judgment summary
This is a decision of the First-tier Tribunal (Tax Chamber) on an application by Florin Merosu to reinstate his appeal, which had been struck out under rule 8(1) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (FTT Rules) for failure to comply with an unless order (3).
Judge Amanda Brown KC determined the application on the papers, applying the Martland principles as confirmed in HMRC v Medpro Healthcare Ltd [2026] EWCA Civ 14, together with guidance from Chappell v The Pensions Regulator [2019] UKUT 209 on reinstatement applications (20, 24).
Although the judge found that the procedural factors, taken alone, favoured reinstatement, she concluded that the Tribunal could not reinstate the proceedings because it lacked jurisdiction over the underlying appeal, as no valid appeal had been made to HMRC before the appeal was notified to the Tribunal (33, 34, 35). The application was therefore refused, as was a related stay application (35, 37).
Background
The appeal concerned discovery assessments issued on 2 September 2025 for the tax years ended 5 April 2022 and 2023, in the sums of £10,009.56 and £10,167.65 respectively, and a closure notice issued on 2 September 2025 for the tax year ended 5 April 2024 in the sum of £14,485.88 (3).
Penalty assessments were issued on 13 August 2025 for each of the relevant tax years. The penalties for 2022 and 2023 were suspended, and the penalty due for 2024 was £6,591.07 (3).
Each assessment and the closure notice notified the Appellant that he had 30 days to appeal to HMRC before any right to take the matter to the Tribunal arose (4). HMRC applied on 6 November 2025 to strike out the appeal under rule 8(2) FTT Rules on the basis that no appeal had been made to HMRC before the notice of appeal was given to the Tribunal on 14 September 2025, so the Tribunal had no jurisdiction (5).
The Tribunal wrote to the Appellant on 14 January 2026 and 28 May 2026, explaining the jurisdictional requirement and directing him, by 11 June 2026, to provide evidence of an appeal to HMRC or of a late appeal application, on pain of strike out (6, 7, 8). The Appellant did not comply, despite having written to HMRC on 29 October 2025 requesting Alternative Dispute Resolution (ADR) and on 28 May 2026 requesting a late review (9). The appeal was automatically struck out, and notification was given on 3 August 2026 (10).
On 3 August 2026 the Appellant applied for reinstatement, explaining that inaccuracies in his returns arose from expense claims made by his accountant without his knowledge, and that he had misunderstood the Tribunal's direction (11). The application referred to a "Tab A" letter to HMRC said to predate the Tribunal notice, but no such document was in the bundle; a different document, Tab H, was an undated letter to an HMRC officer which did not formally state it was an appeal (12).
HMRC objected to reinstatement on 24 August 2026, maintaining that no appeal had been made to them before 14 September 2025, and noting that the ADR request had not been progressed and the late review request had not yet been actioned (14, 15). In reply, the Appellant did not repeat the claim of an earlier appeal and instead stated he had applied to HMRC on 24 August 2026 for a late appeal, and sought a 28-day stay of the reinstatement proceedings pending HMRC's determination of that request (16, 17).
Core dispute
The issue was whether the Tribunal should reinstate the appeal under rule 8(5) FTT Rules following its strike out for non-compliance with an unless order, applying the Martland test as adapted for reinstatement applications in Chappell v The Pensions Regulator (19, 20, 24).
A further, ultimately determinative, issue was whether the Tribunal had jurisdiction to entertain the underlying appeal at all, given HMRC's contention that no valid appeal had been made to HMRC under section 31A Taxes Management Act 1970 before the appeal was notified to the Tribunal (5, 34, 35).
The Appellant also sought, in the alternative, a stay of the reinstatement proceedings pending HMRC's determination of his late appeal request (17).
Court findings
The Tribunal found that the Appellant had 30 days from 13 August and 2 September 2025 to appeal the assessments to HMRC, but did not do so within that period, so the appeal notified to the Tribunal on 14 September 2025 lacked the necessary antecedent statutory step (18(1)-(5)).
The letter of 29 October 2025 requesting ADR, and the letter of 28 May 2026 requesting a late review, were both found, in substance, to be requests for a late appeal, neither of which had resulted in an effective statutory appeal absent HMRC's agreement or the Tribunal's permission (18(6), 18(7)). HMRC had not yet decided whether to admit a late appeal (18(8)).
Applying the Martland test, the Tribunal found the breach of the unless order serious and significant, and the Appellant's explanation for non-compliance not a particularly good one, since he could have supplied the relevant correspondence by the deadline (27-30).
Weighing all the circumstances, including the need for compliance with directions, the Appellant's continued engagement with the dispute, the financial consequences for him, and his prompt and ultimately remedying reinstatement application, the Tribunal stated that, considered alone, these factors would have led to reinstatement (31, 33).
However, the Tribunal held that rule 8(5) is a procedural power only and cannot confer jurisdiction the Tribunal does not otherwise have. As no appeal had been validly made to HMRC before notification to the Tribunal, and HMRC had not yet determined the late appeal request, the Tribunal presently had no jurisdiction over the substantive appeal, and rule 8(2)(a) required that proceedings without jurisdiction be struck out (34, 35).
On the stay application, the Tribunal held that deferring the reinstatement decision would not confer jurisdiction, and that HMRC's eventual admission of a late appeal would not retrospectively validate the earlier defective notification, but would instead generate new appeal rights (37).
Outcome
The Tribunal refused the application to reinstate the appeal, holding that it currently had no jurisdiction over the underlying dispute (34, 35).
The Tribunal also refused the Appellant's alternative application to stay the reinstatement proceedings pending HMRC's determination of his late appeal request (37).
The decision confirmed that the Appellant's ability to pursue his challenge was not extinguished: if HMRC refuse to admit a late appeal, the Appellant may apply to the Tribunal under section 49(2) TMA 1970 for permission to give notice of appeal out of time, and if HMRC admit the late appeal or the Tribunal grants such permission, the statutory appeal process, and a possible future notification to the Tribunal, may proceed (36).
Major issues / areas of contention
- Whether an appeal struck out under rule 8(1) FTT Rules for breach of an unless order should be reinstated under rule 8(5).
- Whether the Martland principles, as adapted for reinstatement in Chappell v The Pensions Regulator, favoured reinstatement.
- Whether a valid appeal had been made to HMRC under section 31A TMA 1970 before the notice of appeal was given to the Tribunal on 14 September 2025.
- Whether rule 8(5) can confer jurisdiction on the Tribunal where none otherwise exists.
- Whether the reinstatement proceedings should be stayed pending HMRC's determination of a late appeal request.
- Whether the Appellant's letters of 29 October 2025 and 28 May 2026 amounted to appeals to HMRC or merely requests for a late appeal.