Judgment summary
This is a decision of the First-tier Tribunal (Tax Chamber) on HMRC's applications to strike out appeals brought by Sameer Khan under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (1).
HMRC had assessed Mr Khan for VAT periods 04/20 to 04/23 totalling £101,753 under section 73(1) VATA (3). One assessment, for period 04/20, was later withdrawn by HMRC, reducing the total to £82,306 (7).
HMRC applied to strike out the remaining appeals on the basis that Mr Khan had not filed VAT returns for the relevant periods, which HMRC said deprived the Tribunal of jurisdiction under section 83(1)(p)(i) VATA (18-19). Mr Khan accepted the returns were outstanding but attributed this to a combination of factors including loss of records in a fire, family illness requiring travel abroad, his own health issues, bankruptcy, and wrongful cancellation of his VAT registration (22).
The Tribunal reviewed prior case law, including Haven Dry Cleaners Ltd v HMRC, Philip Oag v HMRC, Yun He v HMRC, Withington KFC Services Ltd v HMRC, Shaft Sports Ltd v CCE, and Staysure.co.uk Ltd v HMRC, and concluded that a person must have filed the relevant VAT returns before notifying an appeal, and that a notice of appeal cannot be retrospectively validated by later filing (30-35).
The Tribunal therefore struck out the appeals for all periods other than 04/20 for want of jurisdiction, and struck out the appeal for period 04/20 by consent as the assessment had been withdrawn (36, 41-42).
Background
HMRC officers visited Mr Khan's business premises and interviewed him on 23 May and 14 June 2023 as part of compliance checks (2). HMRC wrote to Mr Khan on 3 January 2024 about his failure to file VAT returns for periods 04/18 to 04/23 and requested business records, which were not provided (2).
On 13 May 2024, HMRC raised VAT assessments for periods 04/20 to 04/23 totalling £101,753 (3). A bankruptcy order made against Mr Khan on 15 April 2024 was annulled on 13 January 2025 (4). Mr Khan notified an appeal against the assessments on 5 February 2025, and HMRC accepted this was made promptly following the annulment and did not object on grounds of lateness (5).
On 6 August 2025, HMRC withdrew the assessment for period 04/20, reducing the total assessed to £82,306 (7). On the same day, HMRC applied for an unless order requiring Mr Khan to identify a matter within the Tribunal's jurisdiction and submit outstanding VAT returns for periods 07/20 to 04/23, failing which his appeals would be struck out (8).
Between August and November 2025, HMRC's litigator and an HMRC officer had various communications with Mr Khan's representative, Rosemount Accountancy, regarding filing of the missing returns, including an offer by the officer to manually input return information if provided (9-14). It also emerged that Mr Khan's VAT registration had been (wrongly, as HMRC later accepted) cancelled with effect from 1 February 2020, which HMRC said was an error to be corrected (11-12, 14).
Core dispute
The core issue was whether the Tribunal had jurisdiction to entertain Mr Khan's appeals against VAT assessments under section 83(1)(p)(i) VATA, given that he had not filed VAT returns for the periods assessed (16, 19).
HMRC's position was that section 83(1)(p)(i) VATA only confers a right of appeal against a section 73(1) assessment in respect of a period for which the appellant has made a return, and that Mr Khan's failure to file returns meant no valid right of appeal existed (15-16, 27-28).
Mr Khan argued that his failure to file returns was not deliberate non-compliance but the result of a fire destroying records, personal and family health issues, business disruption including bankruptcy, and wrongful cancellation of his VAT registration by HMRC (22). He submitted that he was actively working to reconstruct his VAT returns and that it would be contrary to the overriding objective to strike out the appeals, requesting a brief adjournment instead (23).
A further issue concerned an apparent inconsistency in HMRC's conduct: HMRC had encouraged and offered to help Mr Khan file the missing returns after the notice of appeal was given, which appeared inconsistent with their strike-out application based on the absence of filed returns before appeal (24-28).
Court findings
The Tribunal held that it only has the jurisdiction conferred on it by statute, and that jurisdiction cannot be conferred by agreement between the parties or by a failure to object (29).
Reviewing prior authority, including Haven Dry Cleaners Ltd v HMRC, Philip Oag v HMRC, Yun He v HMRC, and Withington KFC Services Ltd v HMRC, the Tribunal confirmed that where an assessment is issued because no return has been filed, there is no right of appeal unless or until a return is filed (30-31).
The Tribunal considered Staysure.co.uk Ltd v HMRC, in which it was held that the natural reading of section 83(1)(p)(i) VATA is that a person must have a right of appeal before making the appeal, and a notice of appeal cannot be retrospectively validated by later filing of the missing return (33, 35).
Applying this reasoning, the Tribunal found that, notwithstanding HMRC's encouragement to Mr Khan to file late returns and offers of assistance, the appeals in respect of all periods other than 04/20 had to be struck out for want of jurisdiction (36).
The Tribunal noted that if Mr Khan files the missing VAT returns, he would be able to notify a fresh appeal against the assessments, but would need permission to appeal out of time, with the Tribunal itself deciding that question judicially by applying the principles in Martland v HMRC (37, 39). The Tribunal noted HMRC's indication that, if Mr Khan filed the missing returns within 30 days of the release of the decision, HMRC would not be minded to oppose an application for permission to appeal late (40).
As regards the assessment for VAT period 04/20, both parties agreed that this appeal should be struck out under rule 8(2)(a) of the FTT Rules as the assessment had been withdrawn, consistent with the approach in Align Technology Switzerland GmbH v HMRC and Charles Kendall Freight Ltd v HMRC (41).
Outcome
All of Mr Khan's appeals were struck out (42). The appeal relating to VAT period 04/20 was struck out by consent because HMRC had withdrawn the underlying assessment (18, 41). The appeals relating to the remaining VAT periods were struck out for want of jurisdiction because Mr Khan had not filed the relevant VAT returns before notifying his appeals (36).
The Tribunal noted that Mr Khan may notify a fresh appeal if he files the missing returns, but would require permission to appeal out of time, which the Tribunal would consider judicially (37, 39). Any party dissatisfied with the decision has the right to apply for permission to appeal within 56 days of the decision being sent, pursuant to Rule 39 of the FTT Rules (43).
Major issues / areas of contention
- Whether the Tribunal had jurisdiction under section 83(1)(p)(i) VATA to entertain appeals against VAT assessments where the appellant had not filed VAT returns for the assessed periods.
- Whether an appeal notified before the filing of the relevant VAT returns could be retrospectively validated by a later filing of those returns.
- Whether HMRC's conduct in encouraging and offering to assist with late filing of returns after the notice of appeal was inconsistent with, or undermined, their application to strike out the appeals.
- Whether the appeal against the withdrawn assessment for VAT period 04/20 should be struck out by consent.
- Whether, if the appeals were struck out, Mr Khan could later obtain permission to bring a late appeal upon filing the missing VAT returns.