Hickey & Co Solicitors acts in tax appeals before the First-tier Tribunal, the Upper Tribunal and the Higher Courts.
Appealing a tax tribunal decision: the short answer
An appeal from the First-tier Tribunal lies to the Upper Tribunal solely on a point of law and needs permission. Apply first to the First-tier Tribunal and, if refused, to the Upper Tribunal. The time limit is 56 days in making the application to the FTT. If the Upper Tribunal refuses permission on the papers, you can renew the application orally. However, tight time limits apply.
What counts as an error of law
There are broadly four categories:
- an error about the general law;
- a wrong application of the law to the facts found;
- a finding for which there is no evidence, or which contradicts the evidence;
- a fundamental error of approach, such as asking the wrong question, taking account of irrelevant matters, or reaching a decision no reasonable tribunal could reach.
A finding of fact can be challenged only where the tribunal was not entitled to make it, for example because it ignored relevant evidence.
Review by the First-tier Tribunal
When asked for permission to appeal, the Tribunal may review its own decision, if satisfied that it contains an error of law. That allows obvious errors to be corrected.
What the Upper Tribunal can do
The Upper Tribunal reverse a decision of the First-tier Tribunal if it identifies a material error of law. It can send the case back to the First-tier Tribunal or remake the decision itself (section 12, Tribunals, Courts and Enforcement Act 2007). The admissibility of fresh evidence (not relied upon in the First-tier Tribunal) faces the cumulative test in Ladd v Marshall [1954] 1 WLR 1489: it could not have been obtained with reasonable diligence, it would probably have an important influence on the result, and it is apparently credible.
The Court of Appeal and beyond
A further appeal beyond the Upper Tribunal needs permission and must raise an important point of principle or practice, or show some other compelling reason. If the Court of Appeal refuses permission on the papers, there is no oral renewal. The question remains whether the First-tier Tribunal erred in law (Procter & Gamble UK v HMRC [2009] STC 1990). Above it sits the Supreme Court.
Frequently asked questions
Can I appeal because I disagree with the tribunal’s findings of fact?
Generally not. An appeal must be on a point of law, and the First-tier Tribunal is the primary finder of fact. A finding can be challenged where the tribunal was not entitled to make it, for example where there was no evidence for it, it contradicted the evidence, or the tribunal ignored relevant material.
How long do I have to appeal a tax tribunal decision?
The time limit for seeking permission to appeal to the Upper Tribunal is 56 days. Treat it as fixed. The application goes first to the First-tier Tribunal, and the grounds must identify a specific error of law, so the work needs to start as soon as the decision arrives.
Can HMRC appeal if I win?
Yes, on the same basis: HMRC needs permission and must identify an error of law. Because Upper Tribunal and Higher Court decisions are binding precedent, HMRC may appeal where a point of principles matters to the application of the law to other taxpayers. Plan for that possibility from the day the decision arrives.
Can I introduce new evidence on appeal?
Rarely. Under Ladd v Marshall [1954] 1 WLR 1489, fresh evidence is admitted only if it could not have been obtained with reasonable diligence, would probably have an important influence on the result, and is apparently credible. The conditions are cumulative; failing any one is fatal. The evidence needs to be complete first time around in the First-tier Tribunal.