Judgment summary
This is a decision on HMRC's application to strike out Mr Welham's appeal for lack of jurisdiction, under Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (1). The application was determined on the papers, without a hearing, based on HMRC's written submission and a number of emails from Mr Welham.
The issue was whether Mr Welham had made a valid appeal to HMRC in respect of penalties before notifying an appeal to the Tribunal, as required for the Tribunal to have jurisdiction under section 49D TMA 1970 (2).
Having reviewed the correspondence provided by both parties over an extended procedural history, the Tribunal found that no valid notice of appeal had been given to HMRC by Mr Welham before he appealed to the Tribunal on 13 September 2024. The Tribunal therefore held it had no jurisdiction and struck out the appeal under Rule 8(2) (43, 45).
Background
On 13 September 2024, Mr Welham appealed to the Tribunal against various late filing and late payment penalties charged under Schedule 55 and Schedule 56 to the Finance Act 2009, for the tax years ending 5 April 2013, 2014 and 2015, totalling ten separate penalty amounts ranging from £43 to £100 (3).
The Notice of Appeal enclosed a letter from HMRC dated 15 August 2024, responding to letters sent by Mr Welham in November 2023 and January 2024, which stated that HMRC could not see that Mr Welham had appealed against the late payment penalties other than late filing penalties for 2016-2017 (4, 5). This letter did not explain Mr Welham's appeal rights (5).
On 30 October 2024, HMRC wrote to Mr Welham stating he needed to appeal to HMRC in writing before the Tribunal could consider an appeal, and on the same date HMRC applied for strike out on the basis that no prior appeal had been made to HMRC (7, 8). Mr Welham responded that he had been 'appealing against these since 2013' and was adamant he did not owe the penalties (9).
The Tribunal wrote to Mr Welham on 1 March 2025 explaining the jurisdictional requirement and directing him to provide evidence of prior appeal submissions to HMRC (11, 12). After no response, an unless order was issued on 18 August 2025 (13). Mr Welham responded on 12 August 2025 stating he had appealed to HMRC but had no copy or record of those appeals (14).
Further directions were made for HMRC to produce the November 2023 and January 2024 letters and for Mr Welham to provide any evidence he had (15, 18). HMRC eventually provided two letters on 26 March 2026, which it confirmed were the November 2023 and January 2024 letters, notwithstanding some dating inconsistencies which the Tribunal accepted were typographical (19, 26).
Core dispute
The core dispute was whether Mr Welham had given a valid notice of appeal to HMRC under section 31A TMA 1970 in respect of the penalties for the tax years ending April 2013, 2014 and 2015, before notifying his appeal to the Tribunal, such that the Tribunal had jurisdiction under section 49D TMA 1970 (2, 22, 23).
HMRC's position was that no such appeal had been received, and that as a result the Tribunal had no jurisdiction and the proceedings should be struck out under Rule 8(2) (8, 17).
Mr Welham maintained that he had been appealing since 2013 and had had many calls with HMRC, but he did not have copies or records of any appeals (9, 14).
Court findings
The Tribunal found that none of the letters provided showed that Mr Welham had appealed the penalties to HMRC before appealing to the Tribunal on 13 September 2024 (25).
The Tribunal reviewed the November 2023 and January 2024 letters provided by HMRC and found that they were framed as requests for refund or repayment of penalties and interest, referring to an alleged agreement that charges would be 'wiped', rather than as notices of appeal against specified penalty decisions (27-29). The letters did not mention that Mr Welham was appealing, did not identify the decision being appealed, and did not identify specific assessments being challenged (29).
The Tribunal also considered two further undated letters provided by Mr Welham on 22 September 2025. One contained the Tribunal's case reference and so must have been written after the Tribunal appeal, meaning it could not evidence a prior appeal to HMRC (30, 31). The second, even assuming it was sent to HMRC and related to the relevant periods, was found to be a request for repayment rather than a notice of appeal (32, 33).
Applying a substance over form approach, the Tribunal found that none of the letters, even taken together, amounted to a notice of appeal, since they were requests for discretionary relief and did not convey an intention to challenge specified penalty decisions (34). The Tribunal noted that the burden lay on Mr Welham to demonstrate a valid appeal had been made, and found this burden had not been discharged (35).
The Tribunal accepted that no particular formality is required for a notice of appeal, but held that the communication must still convey, in substance, that an appeal is being made against an identifiable decision, a threshold not met in this case (38). It found that the absence of appeal rights information in the 15 August 2024 letter did not affect the requirement that an appeal must first be made to HMRC (39).
Outcome
The Tribunal found that Mr Welham did not give a valid notice of appeal to HMRC under section 31A TMA 1970, and that the condition in section 49D(1) TMA 1970 was therefore not satisfied (37, 42).
As compliance with section 31A is a prerequisite to the operation of section 49D, the Tribunal held it had no jurisdiction to determine the appeal (42). The Tribunal also considered, and rejected, whether it had power to treat the proceedings as an application for a late appeal to HMRC, finding that no appeal in form or substance had been made from which such jurisdiction could arise (44).
Accordingly, the Tribunal was required by Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 to strike out the proceedings, and the appeal was struck out (43, 45). The parties were notified of the right to apply for permission to appeal within 56 days pursuant to Rule 39 (46).
Major issues / areas of contention
- Whether Mr Welham had given a valid notice of appeal to HMRC under section 31A TMA 1970 before notifying his appeal to the Tribunal.
- Whether the Tribunal had jurisdiction under section 49D TMA 1970 in the absence of a prior valid appeal to HMRC.
- Whether correspondence framed as requests for refund or repayment of penalties could, in substance, amount to a notice of appeal against specified penalty decisions.
- Whether the proceedings should be struck out under Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 for lack of jurisdiction.
- Whether the Tribunal had power to treat the proceedings as an application for permission to make a late appeal to HMRC.