Judgment summary
This decision, made on the papers, concerned an application by Richard Ellison to reinstate two appeals, TC/2017/03786 and TC/2017/06240, which he had withdrawn and which the Tribunal had recorded as withdrawn on 5 March 2018 (paras 1, 12(1), 18).
The Appellant sought reinstatement so that he could pursue, within a fresh appeal submitted on 10 August 2025, a challenge to income tax assessments for 2011/12 to 2014/15 (the 2012-2015 Income Tax Assessments) and VAT surcharges for periods 02/17 to 11/20 (the VAT Surcharges) (paras 1, 3-5, 9).
The Tribunal found that TC/2017/03786 was the appeal relating to direct tax and that the Appellant had withdrawn it by written notice on or before 5 March 2018 (paras 16-19). Applying rule 17(4) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, any reinstatement application had to be made within 28 days, that is by 2 April 2018 at the latest, whereas the application was made on 5 May 2026, over 8 years later (paras 15, 20).
The Tribunal held that, although rule 5 permits an extension of time, it cannot do so where this would conflict with another enactment's time limit, and section 54(4) TMA 1970 created such a conflict because the withdrawal, unopposed by HMRC within 30 days, became a deemed agreement treated as a decision of the Tribunal upholding the assessment without variation (paras 21-27).
Accordingly, the Tribunal found it had no jurisdiction to reinstate TC/2017/03786 or to hear the part of the present appeal concerning the 2012-2015 Income Tax Assessments, as these matters were deemed already decided (para 28).
Background
On 10 August 2025, the Appellant submitted a notice of appeal seeking to cancel remaining 2011/12-2014/15 Self-Assessment and VAT penalties and interest, citing overstated assessments, disability, and adviser negligence, and asking for his behaviour to be reclassified as "careless" (paras 3, 5).
A letter dated 21 October 2016 from HMRC set out that a total of £219,015.63 was due for 2011/12 to 2014/15, comprising income tax of £202,116.95 and NICs of £16,898.68 (para 4).
The Appellant had previously brought two appeals to the Tribunal, TC/2017/03786 (direct tax, against Closure Notice & Discovery Assessments) and TC/2017/06240 (indirect tax, VAT assessments), which he withdrew, with the Tribunal notifying HMRC of the withdrawal on 5 March 2018 (paras 1, 10(1), 44 as referenced).
The Tribunal's April Directions recorded that TC/2017/03786 concerned decisions dated 19 October 2016 and 21 October 2016 with amounts of £219,204.63 and £153,443.23, and that TC/2017/06240 concerned VAT of £116,225 and a Penalty of £94,310; both files had since been destroyed under the Tribunal's destruction policy (para 11).
HMRC's Objection of 2 April 2026 noted a bankruptcy petition dated 23 January 2025 with particulars of debt running to £297,974.85, the majority comprised of VAT liabilities from 08/2018 to 05/22 (para 8). HMRC also confirmed that on 10 November 2025, Late Payment Penalties and Late Filing Penalties (and associated statutory interest) for the 2013/14, 2014/15, 2016/17, 2017/18 and 2019/20 tax years were cancelled (para 8).
Core dispute
The core dispute was whether the Tribunal could and should reinstate the Appellant's withdrawn 2017 Appeals, specifically TC/2017/03786, so as to permit him to pursue a challenge to the 2012-2015 Income Tax Assessments within his 2025 appeal (paras 1, 12(1)).
HMRC contended that the Appellant's withdrawal of TC/2017/03786 created a deemed settlement under section 54(4) TMA 1970, meaning the matter could not in substance be the subject of a late appeal or a reinstated appeal (para 10(1)).
A related but separately treated issue was the Appellant's application for permission to bring a late appeal against the VAT Surcharges for fifteen periods from 02/17 to 11/20, which HMRC accepted had not been the subject of a prior appeal but nonetheless objected to on lateness grounds (paras 10(2), 12(2)-(3), 30).
Court findings
The Tribunal found that TC/2017/03786 was the direct tax appeal to which the reinstatement application in substance related, and that the Appellant had withdrawn it, and TC/2017/06240, by written notice on or before 5 March 2018, the date the Tribunal notified the parties under rule 17(2) (paras 16-19).
Under rule 17(4), any application for reinstatement had to be made within 28 days of that notification, that is by 2 April 2018 at the latest; the actual application, made on 5 May 2026, was therefore more than 8 years late (para 20).
While rule 5 allows the Tribunal to extend time limits, it cannot do so where this would conflict with a time limit set by another enactment (paras 21-23). The Tribunal found that section 54(4) TMA 1970 created such a conflict: because more than 30 days had passed since the withdrawal without HMRC objecting, the withdrawal became a deemed agreement that the assessment or decision under appeal should be upheld without variation, and that deemed agreement is treated as if it were a decision of the Tribunal (paras 24-27, citing Hosie v HMRC [2025] UKFTT 00327 (TCC) at [43] and [46]).
On that basis, the Tribunal held it was not legally possible to reinstate TC/2017/03786, which was deemed already decided, and therefore the Tribunal had no jurisdiction over the 2012-2015 Income Tax Assessments, as these were the subject of that appeal (para 28).
Outcome
The Appellant's application for reinstatement was refused, and the part of the present appeal relating to the 2012-2015 Income Tax Assessments was struck out (para 29).
The remaining part of the appeal, concerning the VAT Surcharges, was left outstanding: the Appellant's application for permission to bring a late appeal in respect of those Surcharges, which HMRC opposed, was to be decided separately at a hearing in due course (paras 30, 13).
Major issues / areas of contention
- Whether the Tribunal had power to reinstate appeals (TC/2017/03786 and TC/2017/06240) withdrawn by the Appellant in 2018, given the application was made in 2026, far outside the 28-day time limit in rule 17(4) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.
- Whether rule 5 permitted the Tribunal to extend the rule 17(4) time limit for reinstatement.
- Whether section 54(4) TMA 1970 deemed the withdrawal of TC/2017/03786 to be an agreement upholding the assessment without variation, creating a conflicting statutory time limit that prevented any extension under rule 5.
- Whether the Tribunal retained jurisdiction over the 2012-2015 Income Tax Assessments once the withdrawal was deemed a settled decision under section 54(4) TMA 1970.
- Whether the Appellant's application concerning VAT Surcharges for periods 02/17 to 11/20 amounted to a late appeal application not previously the subject of prior proceedings.