Judgment summary
This is a decision on the oral renewal of an application for permission to appeal to the Upper Tribunal (Tax and Chancery Chamber). Mr Czerwionka sought permission to appeal the First-tier Tribunal's decision, released on 12 June 2025 following a hearing on 28 March 2025, which had refused him permission to bring a late appeal against an HMRC discovery assessment for 2016/17.
The discovery assessment removed an Enterprise Investment Scheme (EIS) claim from his self-assessment return, filed by Capital Allowances Consultants Ltd ("Capital"), resulting in an additional liability of £19,443.60. The EIS claim was stated to relate to an investment of £66,000, and HMRC had paid a tax refund to Capital, of which Mr Czerwionka received approximately £6000.
His appeal to the FTT was late by just over four years. The FTT refused permission to bring the late appeal, and the FTT itself refused permission to appeal on 14 August 2025. Mr Czerwionka then applied to the Upper Tribunal, and the judge had previously refused permission on the papers on 20 October 2025 before this oral renewal hearing.
At the oral hearing, the judge considered grounds developed by the appellant, assisted by Mr Richard Tweddle, with HMRC represented by Ms Basma Osman attending by video to observe. The judge granted permission to appeal on Grounds 1 to 5 and refused permission on Grounds 6 to 11.
Background
Mr Czerwionka's 2016/17 self-assessment return, filed by his agent Capital, included an EIS claim in respect of a stated investment of £66,000. HMRC issued a discovery assessment removing that claim, creating an additional liability of £19,443.60. HMRC had paid a refund to Capital, of which Mr Czerwionka received about £6000 (paragraph 3).
Mr Czerwionka's appeal against the assessment was late by just over four years. His explanation encompassed personal and mental health difficulties, and his discovery of other FTT decisions involving the same agent and similar claims where taxpayers had succeeded or obtained permission to bring late appeals (paragraph 4).
The FTT refused permission to bring the late appeal, and refused Mr Czerwionka's in-time application for permission to appeal on 14 August 2025. He then made an in-time application to the Upper Tribunal on 22 August 2025 (paragraph 4). The Upper Tribunal judge had earlier refused permission on the papers on 20 October 2025, and this decision concerns the oral renewal of that application (paragraphs 2, 5).
Core dispute
The core question was whether the FTT had erred in law in refusing Mr Czerwionka permission to bring a late appeal against the discovery assessment, applying the three-stage approach in Martland v HMRC [2018] UKUT 178 (TCC) (paragraph 9).
Mr Czerwionka argued the FTT had failed to properly assess his reasons for the four-year delay and had not undertaken a holistic assessment at either stage two or stage three of Martland. His grounds included allegations that the FTT failed to consider that he felt pressured by HMRC not to appeal, failed to consider that he had not authorised Capital to file his return, failed to consider the absence of prejudice to HMRC, misunderstood his explanation for delay, and failed to consider his personal circumstances cumulatively (paragraphs 9 to 26).
Further grounds, on which permission was refused, concerned reliance on legal maxims about fraud, the weight given to other FTT decisions involving the same agent, arguments that the self-assessment returns were void for lack of signature and under the Bills of Exchange Act 1882, an argument that the absence of the assessments from the FTT bundle rendered the proceedings a nullity, an alleged misunderstanding of the chronology of his marital breakdown, and an alleged failure to recognise his vulnerability as a litigant in person (paragraphs 27 to 39).
Court findings
The judge found that several of the appellant's grounds disclosed arguable errors of law. On Ground 1, it was arguable that the FTT failed to take into account the appellant's case that he was pressured, or felt pressured, by HMRC not to appeal, given this was raised in his witness statement and objection but not addressed by the FTT (paragraphs 11 to 13).
On Ground 2, it was arguable that the FTT failed to address, when evaluating the merits at stage three, the appellant's case that he had not authorised Capital to file his return, an issue not engaged with in the FTT's reasons and potentially material given the lack of countervailing evidence of authorisation from HMRC (paragraphs 14 to 16).
On Ground 3, the FTT had not addressed the appellant's argument that allowing the late appeal would cause no prejudice to HMRC, which was at least arguably an error (paragraph 17).
On Grounds 4 and 5, it was arguable that the FTT misunderstood the appellant's written case as resting only on the discovery of favourable FTT decisions, and had not considered his personal circumstances, mental health, and other factors in combination when assessing the delay (paragraphs 19 to 26).
On the remaining grounds, the judge found no arguable error of law. Reliance on fraud maxims did not show the FTT's discretion was converted into an obligation to extend time (paragraphs 27 to 28). The FTT's treatment of other FTT decisions involving the same agent disclosed no arguable error, as those decisions were not binding (paragraphs 29 to 30). Arguments based on the Bills of Exchange Act 1882 and lack of signature did not raise arguable points of law (paragraphs 32 to 33). The absence of the assessments from the FTT bundle did not render the proceedings a nullity, as the FTT was not required to adjudicate on validity or authorisation at that stage (paragraphs 34 to 35). Any error regarding the chronology of the marital breakdown was not material, as the FTT proceeded on the appellant's own account (paragraphs 36 to 37). There was no arguable failure to recognise the appellant's vulnerability, the FTT having expressed sympathy and dealt with him appropriately (paragraphs 38 to 39).
Outcome
Permission to appeal was granted on Grounds 1 to 5 and refused on Grounds 6 to 11 (paragraphs 40 to 41). Any remaining grounds from the written application not specifically addressed were refused for the reasons given in the earlier written permission refusal (paragraph 42).
The judge directed that the grounds as expressed in this decision stand as the appellant's grounds of appeal, subject to the appellant confirming within 28 days whether he wishes to pursue some or all of them (paragraphs 45 to 46, 48).
The appellant was advised that a grant of permission does not guarantee success, that materiality of any errors would need to be established, that even if the FTT decision were set aside the outcome on the late appeal might remain the same, that success would only lead to a further hearing on the substantive appeal against the discovery assessment, and that costs could be awarded against him in the Upper Tribunal if he lost (paragraph 47).
Major issues / areas of contention
- Whether the FTT properly applied the three-stage Martland test for permitting a late appeal.
- Whether the FTT failed to take into account the appellant's case that he was pressured, or felt pressured, by HMRC not to pursue an appeal.
- Whether the FTT failed to address, when evaluating the merits, the appellant's case that he had not authorised Capital to file his self-assessment return.
- Whether the FTT failed to consider the absence of prejudice to HMRC in allowing a late appeal.
- Whether the FTT misunderstood the appellant's written case as relying solely on discovery of other favourable FTT decisions.
- Whether the FTT failed to consider the appellant's personal circumstances, including mental health and work patterns, cumulatively when assessing the delay.
- Whether legal maxims regarding fraud required the FTT to extend time for the late appeal.
- Whether the FTT gave insufficient weight to other FTT decisions involving the same agent and similar EIS claims.
- Whether the self-assessment returns were void for lack of signature or under the Bills of Exchange Act 1882.
- Whether the absence of the self-assessments from the FTT bundle rendered the proceedings a nullity.
- Whether the FTT misunderstood the chronology of the appellant's marital breakdown.
- Whether the FTT failed to recognise the appellant's vulnerability as a litigant in person.