Andrew Fender v The Commissioners for HMRC

Introduction

1. On 2 May 2024 the Appellant, Mr Andrew Fender, applied to the Tribunal for permission to notify HM Revenue and Customs (“ HMRC ”) of an appeal, against Closure Notices issued in respect of the tax years 2008-09 and 2010-11, that had not been made within the statutory time limits (the “ Application ”). HMRC oppose the Application. Procedural Background

2. In a decision issued to the parties on 24 September 2025 (the “ Decision ”), the Tribunal dismissed the Application and a decision notice which included a summary of the findings of fact and reasons pursuant to Rule 35(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009) (the “ Procedure Rules ”).

3. By email dated 7 October 2025, Mr Fender requested a “… full decision notice, including the complete written findings of fact and the reasons for the Decision.”

4. This was to enable him to “fully evaluate the Decision and determine whether there are grounds for an appeal.”

5. It is clear from Rule 35(4) of the Procedure Rules, that if a Tribunal decision, as in this case, provides only summary findings and reasons, a party wishing to appeal must apply for full written findings and reasons for the decision before seeking permission to do so. This decision is therefore provided in accordance with Rule 35, in order to enable Mr Fender to decide whether to apply for permission to appeal against the Decision and, if so, to assist him in formulating any such appeal.

6. However, and most regrettably, due to administrative difficulties and delays for which the Tribunal can only apologise, the 7 October 2025 email requesting the full decision notice was not referred to me until 24 February 2026 leading to the unavoidable delay in providing this decision. Law

7. The right to appeal against decisions of HMRC is contained in s 31 of the Taxes Management Act 1970 (“TMA”). This provides: 31 Appeals: right of appeal (1) An appeal may be brought against— (a) any amendment of a self-assessment under section 9 C of this Act (amendment by Revenue during enquiry to prevent loss of tax), (b) any conclusion stated or amendment made by a closure notice under section 28 A or 28B of this Act (amendment by Revenue on completion of enquiry into return), (c) any amendment of a partnership return under section 30 B(1) of this Act (amendment by Revenue where loss of tax discovered), or (d) any assessment to tax which is not a self-assessment.

8. Section 31 A TMA provides: 31A Appeals: notice of appeal (1) Notice of an appeal under section 31 of this Act must be given— (a) in writing, (b) within 30 days after the specified date, (c) to the relevant officer of the Board. (2) … (3) In relation to an appeal under section 31(1) (b) of this Act — (a) the specified date is the date on which the closure notice was issued, and (b) the relevant officer of the Board is the officer by whom the closure notice was given.

9. However, s 49 TMA provides: 49 Late notice of appeal (1) This section applies in a case where— (a) notice of appeal may be given to HMRC, but (b) no notice is given before the relevant time limit. (2) Notice may be given after the relevant time limit if— (a) HMRC agree, or (b) where HMRC do not agree, the tribunal gives permission.

10. Guidance on the approach to be adopted and the legal principles to be applied when exercising a judicial discretion as to whether to admit a late appeal were given by the Upper Tribunal in the case of Martland v HMRC [2018] UKUT 178 (TCC) (“ Martland ”), at [44] – [47].

11. In summary: (1) It must be remembered that the starting point is that permission should not be granted unless the Tribunal is satisfied on balance that it should be. (2) In considering that question, the Tribunal can usefully follow the three-stage process set out in Denton : (a) Establish the length of the delay. If it was very short (which would, in the absence of unusual circumstances, equate to the breach being ‘neither serious nor significant’), then the Tribunal ‘is unlikely to need to spend much time on the second and third stages’; (b) Establish the reason (or reasons) why the default occurred; and (c) Evaluate ‘all the circumstances of the case’. This will involve a balancing exercise which will essentially assess the merits of the reason(s) given for the delay and the prejudice which would be caused to both parties by granting or refusing permission. (3) In carrying out the balancing exercise the Tribunal can have regard to any obvious strength or weakness of the applicant's case; this goes to the question of prejudice. (4) Shortage of funds (and consequent inability to instruct a professional adviser) should not, of itself, generally carry any weight in the Tribunal's consideration of the reasonableness of the applicant's explanation of the delay:

12. The Upper Tribunal in Martland stated that the balancing exercise should take into account the particular importance of the need for litigation to be conducted efficiently and at proportionate cost, and for statutory time limits to be respected. This approach has recently been confirmed as correct by the Court of Appeal in HMRC v Medpro Healthcare Ltd [2026] EWCA Civ 14 . Facts

13. Mr Fender filed his self-assessment tax return for 2008-09 on 28 January 2010. The return disclosed that Mr Fender had entered into tax arrangements which were notified to HMRC under a DOTAS scheme reference. This was further described in a two page attachment to the return headed “Additional Information for Question 17 on Page Ai4” which described the tax arrangements Mr Fender had entered into.

14. The final paragraph of the attachment stated: “If you require any information on the above transactions please contact, in the first instance, NT Advisors 2009 LLP at [address]. I hereby confirm to HMRC that they may discuss any part of my transaction and tax affairs relating to the above with NT Advisors 2009 LLP and in addition HMRC may send a copy of an enquiry into my 2008/09 return to NT Advisors 2009 LLP.”

15. On 29 October 2010 HMRC issued a notice of enquiry into Mr Fender’s 2008-09 return. The notice of enquiry requested that Mr Fender provide further information about the tax arrangements he had entered into. Although HMRC state that this notice was sent to his home address, Mr Fender says that he did not receive it and, despite it being acknowledged by NT Advisors 2009 LLP, which had been sent a copy of the notice of enquiry, on 9 November 2010, Mr Fender did not become aware of the notice of enquiry until 15 December 2021 when it was included as an exhibit to HMRC’s witness statement in response to Mr Fender’s application to set aside a statutory demand (see below).

16. On 17 October 2017 HMRC issued a Closure Notice for 2008-09 to Mr Fender. This reduced the figure for “qualifying loan interest” from £200,000 to nil. This was because HMRC had concluded that the return had not correctly reflected the tax consequences of Mr Fender’s use of the tax arrangements. As a result Mr Fender was required to pay tax of £72,187.20.

17. In addition to HMRC’s conclusion, the Closure Notice set out the reasons for that conclusion, the amount to be paid and how it should be paid. Under the sub-heading “What to do if you disagree” the Closure Notice stated: “If you disagree with my decision, you can appeal. You need to write to us by 15 November 2017, telling us why you think my decision is wrong. If you appeal, you can ask for payment of all or part of the tax in dispute to be postponed until the matter is resolved. If you want to apply for postponement, please tell us the amount of tax that you think you are being overcharged and the reasons why you think you should not have to pay this. We will continue to charge interest on any tax that is postponed. Once the dispute is settled, the interest will be payable if the tax is found to be due. You can find more information about your appeal and review rights in factsheet HMRC1, 'HMRC decisions - what to do if you disagree'. For a copy of this: • go to www.gov.uk and search 'HMRC1' • phone our orderline on 0300 200 3610.”

18. On 31 January 2012 Mr Fender filed his 2010-11 self-assessment tax return.

19. HMRC’s records show that on 27 February 2012, Mr Fender’s address for tax purposes was changed on HMRC’s system from his home to his business address (“Warwick Road”) and that it was “confirmed with receptionist” on 13 April 2012 that this was the correct address to write to Mr Fender. The records show that, following a letter from Mr Fender, his address for correspondence with HMRC was changed back to his home address on 4 May 2012.

20. On 19 March 2012 HMRC issued a notice of enquiry into Mr Fender’s 2010-11 tax return to the Warwick Road address. However, Mr Fender says he was not aware of this until 7 December 2020 when it was exhibited to an HMRC witnesses’ statement in the statutory demand proceedings (see below).

21. On 8 June 2018 HMRC issued Mr Fender with a Closure Notice for 2010-11. This amended his 2010-11 return increasing the tax payable by him by £170,483.20. That Closure Notice contained similar information, including a statement of what to do if you disagree, as in the Closure Notice issued on 17 October 2017 (see above).

22. HMRC served Mr Fender with a statutory demand on 3 February 2020. This included amounts outstanding in relation to the Closure Notices. Mr Fender’s application to set aside the statutory demand was resolved by a Consent Order, dated 2 October 2023, under which HMRC was authorised to present a Bankruptcy Petition as soon as reasonably practicable following the final disposal of Mr Fender’s appeal to the Tribunal.

23. Although Mr Fender had appealed to the Tribunal against the Closure Notices on 5 April 2023, following an application of 15 September 2023 by HMRC for the appeals to be struck out, Mr Fender wrote to HMRC asking them to accept late appeals against the Closure Notices.

24. However, a letter from the Tribunal of 8 October 2024 explained that those appeals were struck out as there had been no prior appeal to HMRC. That letter also explained: “That is not the end of matters as, on 2 May 2024, Mr Fender submitted an application to the Tribunal. That application is asking the Tribunal to grant Mr Fender permission to make a late appeal to HMRC, because HMRC have refused to consider Mr Fender's appeal to them as they believe it was made too late.” Discussion and Conclusion

25. In the present case Mr Fender seeks to appeal against Closure Notices (see above). Therefore s 31(1) (b) and s 31 A(1)(b) TMA are applicable. As such, Mr Fender was required to give his notice of appeal in writing, specifying the grounds of appeal and to HMRC within 30 days of the specified date. The “specified date”, as defined by s 31 A(3) TMA, is the date on which the Closure Notices were issued (ie in this case on 17 October 2017 for 2008-09 and 8 June 2018 for 2010-11).

26. Accordingly, the appeal against the 2008-09 Closure Notice should have been made by 16 November 2017 and the appeal against the 2010-11 Closure Notice by 8 July 2018. It is therefore too late for Mr Fender to give notice of appeal to HMRC unless he has the agreement of HMRC or permission of the Tribunal to do so under s 49 TMA.

27. In the present case, as HMRC do not agree, it is therefore for the Tribunal, applying the three stage approach set out by the Upper Tribunal in Martland to consider whether to direct HMRC to accept Mr Fender’s late appeals.

28. The first stage is the length of the delay. There was a delay of over five years for the appeal against the 2008-09 Closure Notice and over four years for the appeal against the 2010-11 Closure Notice. Mr Fender accepts that such an “extraordinary delay” will be regarded as “both serious and significant”.

29. The second Martland stage is to establish the reason for the delay. The reasons advanced by Mr Fender for not appealing in time are that he did not see, and was therefore not aware of, the notice of enquiry into his 2008-09 or 2010-11 tax returns until after the Closure Notices had been issued; the personal circumstances (ill-health) of himself and Mrs Fender; and the statutory demand served on him by HMRC in February 2020.

30. The third of the Martland stages is to undertake a balancing exercise to evaluate all the circumstances of the case. In doing so the starting point, as the Upper Tribunal stated in Martland , is that permission should not be granted unless we are satisfied on balance that it should be.

31. Although the validity or otherwise of the notice of enquiry may be a ground of appeal to be considered at a substantive hearing it cannot, in my judgment, explain why it took several years to appeal against Closure Notices which clearly stated the date by which an appeal had to be made if the notice was disputed.

32. While I accept that Mr Fender may have focused his attention on the statutory demand rather than the appeal, as this was not served on him until February 2020, I am unable to find this to be a good reason for the delay in appealing against the Closure Notices which were issued in 2017 and 2018.

33. I very much appreciate the seriousness of the health issues suffered by both Mr and Mrs Fender and realise the impact that these must have had on their day-to-day lives. However, I am unable to conclude that this would have prevented Mr Fender from appealing to HMRC sooner than he did.

34. Having carefully considered all of the circumstances of the case, which includes everything contained in the documents and submissions Mr Fender provided to the Tribunal (even if not specifically referred in this decision) and taken into account the parties’ submissions, I have come to the conclusion that, on balance, Mr Fender should not be granted permission to proceed with his appeal.

35. I therefore dismiss Mr Fender’s application and refuse permission for him to appeal to HMRC out of time. Right to apply for permission to appeal

36. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 26 th FEBRUARY 2026