Permission from the Upper Tribunal needed to argue a new point which was not before the First-tier Tribunal

In Wyatt Paul v HMRC [2022] UKUT 116 (TCC), the Upper Tribunal (UT) confirmed that a party must seek the UT's permission to argue a point that was not argued before the First-tier Tribunal (FTT). The UT refused HMRC permission to argue a point on estoppel by convention, as the new argument would involve findings of fact having to be made.

Background

Wyatt Paul (the Appellant) appealed against an FTT decision which dealt with the availability and timing of US tax relief to Lloyd's underwriters and whether HMRC's enquiry process was invalid because various provisions in the Taxes Management Act 1970 (TMA) had not been complied with. 

The FTT dismissed the appeal and the Appellant appealed to the UT.

The sole ground of appeal concerned whether a notice of enquiry which had not been posted to the Appellant's address, in accordance with section 115, TMA, was properly served and whether the notice was 'received' by the Appellant. HMRC sought to rely on a new argument that the Appellant was estopped by convention from denying that a valid enquiry had been opened, following the Supreme Court's decision in Tinkler v HMRC [2021] UKSC 39. 

UT decision

Relying on the principles established in Singh v Dass [2019] EWCA Civ 360, the UT agreed with the Appellant and confirmed that a party (whether the appellant or respondent) must seek the UT's permission to argue a point that was not argued before the FTT. The UT refused permission to HMRC to argue the point on estoppel by convention because the issue would involve findings of fact having to be made and it could have been argued before the FTT. 

Further, the UT found that if HMRC had argued the point on estoppel by convention before the FTT, then the hearing before the FTT (with regard to evidence) would have been conducted differently.

Comment

This decision serves as a timely reminder to litigants in tax appeals of the importance of raising all relevant arguments at the first appeal stage, particularly where such arguments require findings of fact to be made. The UT (and higher appeal courts) will be reluctant to allow reliance on new arguments which involve findings of fact. 

The decision can be viewed here.