Judgment summary
This decision concerns HMRC's application to strike out proceedings brought by Solar Power PV Limited under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, on the basis that the Tribunal lacked jurisdiction (1).
The Appellant sought repayment of £28,697.38, contending the Tribunal had jurisdiction to order such repayment (2). The Tribunal determined the matter on the papers (see heading; Introduction).
The Tribunal held that the Appellant's claim, properly characterised, was a collateral challenge to a finally determined liability and to the lawfulness of enforcement steps, not an appeal against an appealable decision, and accordingly fell outside its statutory jurisdiction (26-37, 44). The application was granted and the proceedings struck out (45).
Background
In February 2015, HMRC imposed a civil penalty upon the Appellant (5). That penalty was challenged before the Tribunal in Solar Power PV Limited v HMRC [2016] UKFTT 0400 (TC) and subsequently appealed to the Upper Tribunal (UT/2016/0189); both challenges were unsuccessful and the liability became final (5).
Payments were made over time towards discharging the liability, and a balance remained outstanding (6). In October 2024, HMRC indicated that enforcement action might be pursued, including presentation of a winding-up petition (7). In May 2025, such a petition was presented; shortly afterwards the Appellant made substantial payments and discharged the remaining balance, and the petition was withdrawn (8).
In October 2025, the Appellant commenced the present proceedings, seeking repayment broadly equivalent to the balance which had been paid (9).
Core dispute
The Appellant contended that the 2015 penalty fell to be treated as a civil monetary penalty under Schedule 24 to the Finance Act 2007, subject to the Limitation Act 1980, and that by the time HMRC pursued enforcement the liability had become time barred (11-12). It alleged HMRC mischaracterised the liability as one arising under the Value Added Tax Act 1994, that the winding-up petition was wrongful, that it was compelled to pay in circumstances where the debt was not lawfully recoverable, and that HMRC's conduct amounted to negligent misrepresentation and was not fair or just (12-14). The Appellant submitted the Tribunal had jurisdiction to examine these matters and order repayment, relying on the overriding objective and on Cox v Adecco UKEAT/0339/19/AT (15-16).
HMRC submitted the proceedings fell outside the Tribunal's jurisdiction because the Appellant was not appealing an appealable decision but was instead challenging a historic liability and steps taken to enforce it, matters said to fall outside jurisdiction (17-19). HMRC further submitted that reliance on Cox v Adecco was misplaced, as that case concerned strike out for lack of reasonable prospects of success rather than jurisdiction, arose under a different procedural code, and was not binding (20).
Court findings
The Tribunal held that its jurisdiction is wholly statutory, with no inherent or general jurisdiction, and that in VAT matters jurisdiction arises principally under section 83 of the Value Added Tax Act 1994, the Tribunal's function being appellate rather than supervisory (21-22). Rule 8(2)(a) is mandatory where jurisdiction is absent (23).
Having considered the Notice of Appeal and the Appellant's written response, and taking the Appellant's case at its highest, the Tribunal found that no appealable decision had been identified or produced, and that the Appellant's claim was, in substance, an assertion that the underlying liability was unenforceable, wrongly pursued and mischaracterised, with a consequential claim for repayment (25-27).
The Tribunal found it had no jurisdiction to determine enforceability under the Limitation Act 1980 in the enforcement context, no jurisdiction over the propriety of insolvency proceedings or the winding-up petition, and no jurisdiction over freestanding claims in negligent misrepresentation or restitution (30-33). The overriding objective was found not to confer jurisdiction that does not otherwise exist (34).
The Tribunal further found that no statutory decision giving rise to a right of appeal had been identified, noting the absence of any review conclusion letter, and that even assuming a repayment claim had been refused, the Appellant's case did not challenge the correctness of such a decision but instead the underlying liability and HMRC's conduct (35-36). The proceedings were found to have the character of a collateral challenge to a liability already finally determined by the Tribunal and Upper Tribunal, which could not be reopened by reframing the complaint in terms of limitation, misrepresentation or unfairness (37).
On Cox v Adecco, the Tribunal accepted the importance of identifying the nature of a claim before strike out, but distinguished the case as concerning discretionary strike out on the merits under a different procedural regime, not a mandatory strike out for want of jurisdiction, and held it was not binding, though potentially persuasive (38-41).
Outcome
The Tribunal found that the proceedings were not an appeal against an appealable decision but constituted a collateral challenge to a liability and to enforcement action, over which it had no jurisdiction (44). HMRC's application was granted and the proceedings were struck out for lack of jurisdiction (45). The decision noted the parties' right to apply for permission to appeal under Rule 39 within 56 days of the decision being sent (46).
Major issues / areas of contention
- Whether the Tribunal had jurisdiction under Rule 8(2)(a) to entertain proceedings seeking repayment of £28,697.38.
- Whether the Appellant's claim, properly characterised, amounted to an appeal against an appealable decision within the Tribunal's statutory jurisdiction.
- Whether the Tribunal had jurisdiction to determine questions of limitation under the Limitation Act 1980 in the context of enforcement of a penalty liability.
- Whether the Tribunal had jurisdiction over allegations concerning the propriety of a winding-up petition.
- Whether the Tribunal had jurisdiction over freestanding claims in negligent misrepresentation or restitution.
- Whether the overriding objective could confer jurisdiction otherwise absent.
- Whether the proceedings amounted to an impermissible collateral challenge to a liability already finally determined by the Tribunal and Upper Tribunal.
- Whether Cox v Adecco UKEAT/0339/19/AT was applicable or binding in the context of a mandatory strike out for want of jurisdiction.