BW Interiors Limited v The Commissioners for HMRC

This is an application by the Respondents (“HMRC”) to strike out the appeal of B W Interiors Limited (“the Appellant”) under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) 2009 (“the Rules”) on the basis that this Tribunal does not have jurisdiction to hear the appeal.

In summary, HMRC contend that the Appellant did not give written notice of appeal to HMRC as required by section 49 D Taxes Management Act 1970 (“TMA”) but instead gave notice of appeal only to the Tribunal. HMRC argue that as the statutory requirements for notifying an appeal to the Tribunal have not been satisfied as the Appellant has failed to follow the procedure set out in the relevant legislation, the appeal must be struck out.

The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—

does not have jurisdiction in relation to the proceedings or that part of them; and

does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

An appeal may be brought against -

[...]

Any conclusion stated of amendment made by a closure notice under section 28 A or 28B of this Act (amendment by Revenue on completion of enquiry into return),

[...]

Any assessment to tax which is not a self-assessment.

Notice of an appeal under section 31 of this Act must be given

In writing,

Within 30 days after the specified date,

To the relevant officer of the Board.

the specified date is identified as the date of issue of a closure notice or assessment; and

the relevant officer is identified as the officer who issued the closure notice or assessment; and

the notice of appeal must specify the grounds of appeal.

This section applies if notice of appeal has been given to HMRC.

The appellant may notify the appeal to the tribunal.

If the appellant notifies the appeal to the tribunal, the tribunal is to decide the matter in question.

Subsections (2) and (3) do not apply in a case where–

HMRC have given a notification of their view of the matter in question under section 49 B, or

HMRC have given a notification under section 49 C in relation to the matter in question.

In a case falling within subsection (4)(a) or (b), the appellant may notify the appeal to the tribunal, but only if permitted to do so by section 49 G or 49H.

As can be seen from the above, by virtue of section 49 D(1) TMA, a person can only notify an appeal to the Tribunal if a notice of appeal has been given to HMRC. The appeal must be in writing ( section 31 TMA) and the notice of appeal must be given to the relevant officer of the Board i.e. the officer who issued the Decision ( section 31 A TMA). For these purposes, the “specified date” is the date on which the closure notice or notice of assessment was issued.

HMRC issued a ‘Pre-closure explanation’ letter on 29 April 2025. The letter stated:

“If you disagree with the Closure Notice after you receive it you may:

It does not appear in dispute that the Appellant sought clarity from HMRC on 2 May 2025 that it could appeal directly to the Tribunal, as the letter appeared to contradict the guidance on Form T240.

HMRC responded on 7 May 2025 confirming its statement in the letter of 29 April 2025.

It appears there was a complaint by the Appellant relating to the handling of the Appellant’s 2021 R&D claim. An extract from HMRC’s response to the complaint dated 21 July 2025 stated:

“The enquiry has also been fully reviewed by a Tax Specialist and a senior officer and neither party have found evidence of bias, and nor do they disagree with the final decision.”

The full letter was not included in the material available to me.

The Appellant appealed to the Tribunal against a Closure Notice dated 9 July 2025 for SME R&D Tax Relief on 6 August 2025.

HMRC issued its View of the Matter letter on 21 October 2025.

HMRC contend that the Tribunal has no jurisdiction to determine the appeal, as no notice of appeal was given to HMRC in the first instance, as per the legislation.

Section 31 A states that a notice of appeal must be given in writing, within 30 days after the specified date and to the relevant officer of the Board. The specified date is the date on which the closure notice was issued.

On 6 May 2025, the Appellant contacted HMRC to query whether an appeal could be sent to the Tribunal without first notifying HMRC.

On 7 May 2025, HMRC issued an email in response referring to the closure notice that was due to be issued and the action the Appellant should take if it disagreed with these decisions.

HMRC acknowledge that incorrect information “may” have been given to the Appellant regarding appeal rights to the Tribunal and “regrets any confusion caused”. However, it maintains that the Tribunal does not have jurisdiction to adjudicate on public law matters such as legitimate expectation or procedural unfairness arising from incorrect advice which would fall within the jurisdiction of the High Court via judicial review.

HMRC submit the statutory requirements for initiating an appeal are not discretionary and cannot be waived or overridden by incorrect advice.

HMRC has confirmed that if an appeal were made directly to HMRC, the appeal would be accepted as if made in time.

The Appellant submits that it relied upon advice from HMRC which was confirmed by HMRC when clarification was sought.

To allow the strike out application would unnecessarily punish the Appellant for HMRCs error and would have the unnecessary outcome of delaying the appeal, which HMRC have indicated they do not object to.

HMRC issued its View of the Matter letter on 21 October 2025 which the Appellant submits constitutes or serves the function of an appeal response.

HMRC accept that incorrect advice was given which may, in exceptional cases, give rise to legitimate expectation. However, HMRC provide no reasonings as to why legitimate expectation should not apply. HMRC’s reliance on Hok [2012] UKUT 363 , and Sewell [2024] UKFTT 00773 (TC) do not apply as both cases concerned the reliance on HMRC statements that impacted the tax liability. In this case, the Appellant is not relying on legitimate expectation to succeed in their appeal, but to avoid an unnecessary delay in having their case heard.

The Appellant is currently in receipt of an appeal response (the letter dated 21 October 2025) which treats the Notice of Appeal to the Tribunal as a notice of appeal to HMRC. Per TMA 1970 s49 D, notice had therefore been provided to HMRC simultaneously to the appeal to the Tribunal.

To grant the application would cause unnecessary delay to an appeal that HMRC have confirmed they will accept.

This decision relates only to the application made by HMRC that the Appellant’s appeal should be struck out on the grounds that this Tribunal has no jurisdiction to hear it. The basis for that application is that no appeal has been notified to HMRC as required by section 49 D TMA.

The application falls to be determined by reference to the requirements of section 31 A and 49D of TMA 1970 , in terms of notifying HMRC, which is a question of law.

"...questions of jurisdiction cannot be determined by consent, still less by default. The question whether or not a tribunal has jurisdiction to determine a question is a question of law. The answer to it depends upon the correct interpretation of the legislation creating its jurisdiction and cannot depend on the conduct of one of the parties."

"...it is not open for HMRC to dispense with the requirement that it must serve a notice under s.8(1) in order for a taxpayer's return to be a return 'under s.8'. This is an express statutory requirement that cannot be waived by the exercise of HMRC's discretion."

In my view, the position is the same in relation to TMA s 49 D, which provides that an appellant can only notify his appeal to the Tribunal if he has first appealed to HMRC. HMRC's care and management powers do not allow them to override that statutory requirement, and it follows that the Tribunal has no jurisdiction to decide a direct tax appeal, unless it has first been made to HMRC.

"...HMRC must be asked to agree to a late appeal before any question of applying to the tribunal for permission can arise. That is for the (perhaps obvious) reason that any tribunal would wish to know, before considering whether to grant permission for a late appeal, the view of HMRC about the reasonableness of the excuse for not giving notice before the 30 days had expired."

There are also other reasons why appeals have to be made first to HMRC: the Officer receiving the appeal may consider the reasons and change his position, and the appellant has the opportunity to ask for, or accept, a statutory review carried out by a different HMRC Officer. Appeals made first to HMRC may thus be settled between the parties without reference to the Tribunal."

Section 31 A is headed "Appeals: notice of appeal" and sets out the requirements for making an appeal. In relation to appeals made "under section 31 " it provides that notice of an appeal under section 31 must be given in writing, within 30 days after the issue of the closure notice or making of the assessment and to the relevant officer of the board. In my view, for the reasons set out below, section 31 A cannot be met by notifying an appeal to the Tribunal without first having notified HMRC.

Section 49 A of TMA 1970 provides as follows:

“This section applies if notice of appeal has been given to HMRC.

In such a case…

By the use of the past tense, and giving the words of the statute their ordinary meaning, it is clear that the options available to an appellant found in section 49 A(2) namely, to request a review, to wait for an offer of a review to HMRC or to notify the appeal to the tribunal, only arise where an appeal has already been notified to HMRC.

I therefore agree with the comments of Judge Redston in Flash Film and find that the legislation provides that an appeal must be made to HMRC before an appeal can be notified to the Tribunal.

The Appellant did not notify its appeal in writing to HMRC as required by section 49 D(1) prior to notifying the Tribunal and in those circumstances the Tribunal has no jurisdiction and HMRC’s application must be allowed.

It is regrettable that HMRC provided incorrect advice and subsequently confirmed that advice to the Appellant. However, this Tribunal has no jurisdiction to consider the conduct of HMRC or the issue of legitimate expectation, which are matters more appropriately pursued via HMRC’s complaints procedure or by way of judicial review if the Appellant chooses to do so.

I noted the Appellant’s representations in relation to HMRC’s response to the Appellant’s complaint dated 21 July 2025 which indicated that the enquiry had been reviewed and “ neither party have found evidence of bias, and nor do they disagree with the final decision”. As set out above, the letter was not provided, and on the material before me, I cannot be satisfied that the extract can be construed as pertaining to any matter beyond the scope of the complaint such that it could constitute a notice of appeal to HMRC.

I note that HMRC has already issued its view of the matter and its indication that any appeal notified to it will be accepted should minimise any further delay in proceedings. However, this application must be decided by reference to the relevant governing provisions, and I am satisfied that the legislation provides that an appeal must be made to HMRC before an appeal can be notified to the Tribunal and section 31 A cannot be met by notifying an appeal to the Tribunal alone.

The application is granted and the appeal is struck out.

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.