Judgment summary
This decision concerns HMRC's application to strike out an appeal brought by Jonathan Kennaugh against a Simple Assessment issued under section 28H of the Taxes Management Act 1970 for the tax year ended 5 April 2024 (3).
HMRC applied to strike out the appeal on two grounds: that the Tribunal lacked jurisdiction under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, or alternatively that the appeal had no reasonable prospect of success under Rule 8(3)(c) (2).
The Tribunal, Judge Geraint Williams, determined the matter without a hearing under Rule 29(3), having considered the Notice of Appeal, Grounds of Appeal, HMRC's strike out application, the Appellant's written representations and the parties' correspondence.
The Tribunal concluded that the Appellant did not challenge the correctness of the assessment but instead raised complaints about HMRC's administration and conduct, which fell outside the Tribunal's statutory jurisdiction (24, 26, 30). The appeal was struck out under Rule 8(2)(a) (32, 35).
Background
On 3 November 2024, HMRC issued a Simple Assessment under section 28H TMA in the amount of £5,831.22 for the tax year ended 5 April 2024, following reconciliation of the Appellant's PAYE records (17).
HMRC's position was that the Appellant received a tax refund through PAYE after an incorrect amount of previous pay and tax was reported to a new employer, and that although the tax code was later corrected, insufficient tax was thereafter deducted to eliminate the resulting shortfall, giving rise to the underpayment of £5,831.22 (18).
On 14 July 2025 the Appellant contacted HMRC indicating an intention to appeal, and a written appeal was received by HMRC on 21 July 2025 (19). By letter dated 15 September 2025, the Appellant requested a review; HMRC issued a view of the matter letter on 17 October 2025, and the review period, after extension, ran until 6 February 2026 (20).
On 4 February 2026 HMRC issued its review conclusion upholding the Simple Assessment in full, stating that the refusal of Extra-Statutory Concession A19 was not an appealable matter and fell outside the scope of the review (21). During the review the Appellant raised further concerns about administrative errors, complaints handling, financial hardship, emotional distress and a data subject access request, which HMRC said fell outside the scope of the review (22).
Following the review conclusion, the Appellant notified his appeal to the Tribunal, contending that HMRC had made repeated administrative errors, provided incorrect information, failed to deal properly with his complaints, mishandled his subject access request, failed to comply with data protection requirements, and caused him financial and emotional distress, such that it was unfair for him to pay the assessed amount (23).
Core dispute
The issue was whether the grounds advanced by the Appellant fell within the Tribunal's statutory jurisdiction on an appeal against a Simple Assessment issued under section 28H TMA (3, 24).
HMRC contended that the Appellant did not dispute the validity or correctness of the assessment, but instead advanced complaints about HMRC's conduct, administration and handling of his affairs, which HMRC said fell outside the Tribunal's jurisdiction (3).
The Appellant's case, read as a whole, was that HMRC had made repeated errors over a number of years, provided incorrect information, mishandled his case and complaints and subject access request, and caused him financial and emotional distress, such that it was unfair to require him now to pay the assessed amount (25).
Court findings
The Tribunal found that the Appellant did not challenge the correctness of the Simple Assessment itself: he did not contend that his income had been overstated, did not challenge the allowances or reliefs taken into account, did not identify any arithmetic error, and did not dispute HMRC's conclusion that insufficient tax had been collected through PAYE (26).
Applying Aspin v Estill (Inspector of Taxes) [1987] STC 723, the Tribunal noted that complaints that it would be unfair or oppressive to enforce a legally due liability, because of some other circumstance, do not fall within the statutory appellate jurisdiction, and that any remedy for such matters lies elsewhere, such as judicial review (10, 11, 28).
The Tribunal applied HM Revenue and Customs Commissioners v Hok Ltd [2012] UKUT 363 (TCC), which held that the Tribunal, as a creature of statute, has no general power to override statutory liabilities or to supervise HMRC's conduct on grounds of fairness (12, 13, 29).
The Tribunal also applied Trustees of the BT Pension Scheme v Revenue and Customs Commissioners [2015] EWCA Civ 713, which held that the Tribunal's statutory jurisdiction does not extend to what are, in substance, public law challenges concerning the fairness of HMRC's treatment of the taxpayer (14, 29).
The Tribunal concluded that complaints concerning administrative errors, complaint handling, delay, subject access requests, alleged data protection breaches, hardship and emotional distress do not bear upon the correctness of the Simple Assessment and would not permit the Tribunal to reduce or discharge the liability (30). The Appellant's case was, in substance, that HMRC's conduct made it unfair to seek payment, which is not a matter the Tribunal has jurisdiction to determine on an appeal against a Simple Assessment (31).
The Tribunal held that the condition in Rule 8(2)(a) was satisfied and that, in those circumstances, it had no discretion but to strike out the appeal (32). The Tribunal added that, had it been necessary to decide the alternative application, it would also have concluded that the appeal had no reasonable prospect of success under Rule 8(3)(c), for the same reasons (33).
Outcome
The Tribunal concluded that it did not have jurisdiction in relation to the grounds advanced by the Appellant (34).
Pursuant to Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, the appeal was struck out (35).
In light of that conclusion, it was unnecessary to determine HMRC's alternative application under Rule 8(3)(c) (36). The parties were informed of the right to apply for permission to appeal within 56 days under Rule 39 (37).
Major issues / areas of contention
- Whether the Tribunal had jurisdiction to consider an appeal against a Simple Assessment issued under section 28H TMA where the Appellant did not challenge the correctness or amount of the assessment.
- Whether complaints about HMRC's administrative conduct, complaint handling, delay, subject access requests, data protection, financial hardship and emotional distress fall within the Tribunal's statutory jurisdiction on a tax assessment appeal.
- Whether the appeal should be struck out under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 for lack of jurisdiction.
- Whether, in the alternative, the appeal had no reasonable prospect of success under Rule 8(3)(c) of the Tribunal Rules.
- The application of Aspin v Estill, Hok Ltd and BT Pension Scheme to the limits of the Tribunal's statutory jurisdiction over fairness-based complaints against HMRC.