Bell - The importance of selecting the correct forum when alleging unfairness on the part of HMRC

In J Bell v HMRC [2018] UKFTT 261 (TC), the taxpayer's appeal was struck out by the First-tier Tribunal (FTT), because it does not have jurisdiction to consider issues of public law.

Background

Mr James Bell (the taxpayer) appealed against a self-assessment to income tax in the sum of £24,926.40, in respect of the 2009/10 tax year.

The taxpayer argued that HMRC should have waived his liability to the tax in question on the basis that he was entitled to relief under Extra-statutory Concession A19 (ESC A19). ESC A19 applies where various conditions are satisfied, one of which is that, before being notified of the relevant tax arrears, the taxpayer in question formed the reasonable belief "that his or her tax affairs were in order". 

The taxpayer claimed that prior to being made aware of the tax arrears, given the information about his earnings held by HMRC and the fact that he had not been informed of the claimed tax arrears by HMRC at an early stage, he reasonably believed that his tax affairs were in order. 

HMRC disputed this and alleged that although there had been errors on its part in processing and acting on information which was in its possession, it was not reasonable for the taxpayer to have concluded, prior to him being informed of the tax arrears in question, that his tax affairs were in order on the ground that as he earned a large salary he should have realised that he ought to be paying more tax. 

HMRC applied to the FTT to strike out the taxpayer's appeal.

HMRC argued that the FTT did not have jurisdiction to determine the appeal for the following reasons:

1. the FTT has no jurisdiction to consider whether HMRC has acted unreasonably in failing to apply an extra-statutory concession because the remit of the FTT is confined to the appropriate application of the tax legislation; if a taxpayer wishes to challenge HMRC's refusal to apply an extra-statutory concession this must be done by way of judicial review proceedings; and 

2. the FTT has no jurisdiction to hear an appeal against a liability to income tax that has been self-assessed, as section 31, Taxes Management Act 1970 (TMA) does not allow for appeals against self-assessment.

FTT decision

The appeal was struck out.  

Although the FTT was of the view that the taxpayer had a "justifiable grievance" in relation to the manner in which his tax affairs had been dealt with by HMRC, it confirmed that it was not within its power to adjudicate on the matter. The FTT referred to The BT Pension Scheme (Trustees of) v HMRC [2015] EWCA Civ 713  in which both  the Upper Tribunal and the Court of Appeal confirmed that the FTT has no jurisdiction to determine common law issues of fairness. Such matters can only be dealt with by way of judicial review. 

The FTT also found that as the taxpayer had completed a self-assessment he had no valid grounds to appeal under section 31, TMA.

Comment

This case demonstrates the importance of establishing the correct forum for litigating a dispute with HMRC. In practice, identifying the correct forum is not always straightforward, especially since the decision of the Court of Appeal in R (oao Glencore Energy UK Limited) v HMRC [2017] EWCA Civ 1716. 

If a taxpayer commences judicial review proceedings in the High Court HMRC often argue that the taxpayer has an alternative remedy and should have brought an appeal before the FTT and if the taxpayer has pursued an appeal before the FTT, rather than judicial review proceedings, HMRC often argue that the FTT lacks jurisdiction (as it did in this case).  

In circumstances where there is jurisdictional uncertainty it may be prudent for the taxpayer to make a 'protective' application for judicial review (as there are strict time limits within which judicial review proceedings must be commenced) and file an appeal with the FTT. If appropriate, the judicial review proceedings can then be stayed pending the outcome of the proceedings before the FTT. 

This is a complex area and it is important that taxpayers obtain specialist legal advice at the outset of a dispute in order to ensure their position is not prejudiced.

A copy of the decision can be viewed here.