At the heart of this decision are two applications:

That apparently simple position was complicated by five confusing documents issued by HMRC in October 2020 (“the October Documents”), some eight months after a statutory review decision. Mr Miah’s position was that the October Documents constituted new appealable decisions. As explained below, I decided that this was not the position. Instead, the October Documents simply recorded the outcome of the earlier statutory review.

The applications related to two substantive matters: rental profits and the use of a company car with fuel (abbreviated in this decision to “car benefit”). I decided that:

It follows that all the issues in dispute are already settled and none remains to be decided by the Tribunal.

Two procedural issues were decided before the hearing. The first concerned the witness evidence of Ms Jesminara Rahman of Tax Resolute Ltd (“Tax Resolute”), Mr Miah’s accountant; the second was a postponement application. These two applications and their outcomes are summarised below because they are relevant to the evidence taken into account in coming to this decision.

The hearing date of 13 July 2022 was agreed by both parties. On 20 May 2020, after the hearing had been listed, Independent Tax filed and served a witness statement from Ms Rahman. The covering email said:

The email therefore did not include an application for the hearing to be relisted so that Ms Rahman could attend. On 24 May 2022, HMRC wrote to the Tribunal, copying Independent Tax, saying:

That correspondence was referred to me, and on 13 June 2022, the Tribunal clerk wrote to Independent Tax at my direction as follows:

On 28 June 2022, Independent Tax filed an application for the hearing to be postponed. The application opened by saying that:

The application then said:

The application concluded by saying that if the hearing was not postponed, Mr Miah would “not be able to rely upon a suitably qualified advocate to represent their [sic] case at the hearing”; his response would therefore “most likely be insufficient”, and he “would be further prejudiced by being unable to rely on the evidence provided by Ms Rahman”.

On 30 June 2022 I refused the postponement application. The refusal decision included the following points:

It is however clear from the previous part of this decision that:

As Ms Rahman had not attended the hearing to be cross-examined on matters which were in dispute, little or no weight can be given to that disputed evidence. I return to this at §80.

Mr Miah also did not attend the hearing or provide a witness statement. I asked Mr Rippon why he was not present, and he said Mr Miah was content to rely on his advisers. As a result, the Tribunal had no evidence about some arguably relevant matters, see for example §89.

I find the facts set out in this section of the decision on the basis of the facts as disclosed by the correspondence in the Bundle.

In 2015, HMRC began an investigation into the tax affairs of Mr Miah, the director and owner of a company called STRL Ltd. On 16 September 2015, Mr Miah agreed in a meeting with HMRC that he had not disclosed a number of properties; he subsequently provided HMRC with a schedule detailing six properties.

Apart from rental income, the other focus of HMRC’s investigation was an Audi Q7 valued at £52,000, insured for “social domestic and pleasure purposes”, with Mr Miah, his wife and brother (who did not work for STRL) being named drivers. The car was owned by STRL, which also paid for all the fuel. It was Mr Miah’s case that this was a “pool car”.

On 29 January 2019 and 12 February 2020, Ms Parker of HMRC issued Mr Miah with the following discovery assessments:

Ms Parker also issued Mr Miah with penalties, to which I return at the end of this judgment.

On 27 February 2019, Ms Rahman appealed all the assessments to HMRC on behalf of Mr Miah. She and Ms Parker entered into discussions, and on 12 November 2019, Ms Parker wrote to Mr Miah saying that “HMRC are required by law to confirm our most recent view of the matter” and that her view remained the same as set out in the discovery assessments made earlier that year. She continued:

On 11 December 2019, Ms Rahman replied, setting out the reasons why she disagreed with the car benefit charges, and adding:

On 12 December 2019, Ms Parker wrote again, asking Ms Rahman to confirm within seven days whether Mr Miah was asking for a statutory review. On 20 December 2019, Ms Rahman replied, saying:

On 4 February 2020, Ms Parker asked if Mr Miah wanted the statutory review to include the penalties, and on 7 February 2020, Ms Rahman confirmed that the penalties were to be included.

On 12 February 2020, Ms Andrea Smith, an HMRC Review Officer, issued a statutory review of the assessments to the extent that they related to the car benefit; her review did not refer to the rental income because HMRC understood that issue to have been settled. She varied the discovery assessments for the years 2012-13 through to 2016-17 because she decided the car benefit had been wrongly calculated. Her review letter set out the new figures: for each of those five years, as the result of which the total due from Mr Miah was £80,616.57 rather than the £79,630.57 in the discovery assessments. Of this, £47,783.60 related to car benefit and the balance related to the rental profits.

Under the heading “what happens next”, Ms Smith said:

On 23 October 2020, Ms Parker sent Mr Miah a document entitled “Notice of assessment for the year ended 5 April 2013”, together with similar documents for 2012-13 through to 2016-17 (“the October Documents”).

The tax shown in October Documents was identical to the figures Ms Smith had decided in the review decision as being due from Mr Miah The text of each Document said:

Under the heading “what do you do if you disagree”, each of the October Documents said “if you have changed your mind and want to withdraw from the agreement settling the appeal, you need to write to us within 30 days of the date of our assessment, telling us why”.

On 17 November 2020, Ms Rahman filed a Notice of Appeal with the Tribunal on behalf of Mr Miah against “the amended discovery assessments”, namely the October Documents. Under “grounds for appeal” she said that Mr Miah believed both the “charges on the company car” and the “disallowed costs for rental income” to be unreasonable.

The Tribunal issued an acknowledgement of receipt by return, and Ms Rahman forwarded that receipt to Ms Parker the same day, saying “I have just submitted the tribunal appeal. Please can you put the tax on hold until the tribunal appeal has been dealt with”.

On 15 December 2020, HMRC made an application for Mr Miah’s appeal to be struck out on the basis that all issues had already been settled between the parties under TMA s 54, and the October Documents simply notified Mr Miah of the sums due as a result.

In his skeleton argument on behalf of Mr Miah, Mr Rippon submitted that:

The parties’ primary submissions related to the status and effect of the October Documents. Where the parties relied on specific legislation, those provisions are set out as part of my analysis, which follows at §43.

Mr Rippon submitted that the October Documents were themselves assessments: this was clear from the headings, which said they were each a “notice of amended assessment”. In addition, the text specifically said those assessments had been made under TMA s 29.

Mr Rippon went on to say that since the October Documents were assessments, TMA s 30A(4) gave Mr Miah a right to appeal those assessments within 30 days of the date of issue, namely 23 October 2020; Ms Rahman had complied with that time limit by filing the Notice of Appeal on 17 November 2020 and copying that document to Ms Parker on the same day.

He added that the October Documents specifically set out the total amount payable by Mr Miah for each of the years, and those amounts included sums relating to the rental income as well as to the car benefit. The October Documents therefore allowed Mr Miah to make in-time appeals against the whole of those assessments, including the part relating to the rental income.

He asked the Tribunal to find that in the October Documents, HMRC were “explicitly, clearly and consciously offering the Appellant the opportunity to resile from the agreement settling the appeal, and provided them with 30 days to do so”. In his submission, the wording must have been “a purposeful decision” by Ms Parker “to allow a further dispute to be considered”, and that in doing so she was exercising HMRC’s powers of care and management. In his submission, Ms Rahman’s email to Ms Parker on 17 November 2020 constituted Mr Miah’s resilement from any agreement as to the tax due for the relevant years.

Ms Davies said that the October Documents were not new assessments carrying their own rights of appeal, because:

In Ms Davies’s submission, by the time the October Documents were issued:

In Ms Davies’s submission, the October Documents were simply a notification to Mr Miah that the amendments made by the statutory review had been processed by HMRC.

Ms Davies also disagreed with Mr Rippon as to the status of the email sent to Ms Parker by Ms Rahman on 17 November 2020. She said this was not an appeal to HMRC against the “new” decisions, and neither was it a resilement from the s 54 agreement; instead, it was clear from its wording that Ms Rahman had simply asked HMRC to suspend collection because an appeal had been made to the Tribunal.

I first review some of the key statutory provisions and then consider the rental income, the statutory review and the status of the October Documents.

In January and February 2019, Ms Parker issued discovery assessments under TMA s 29. There was no challenge to the validity of those assessments – for instance, because they were out of time, or because of earlier disclosure in Mr Miah’s self-assessment returns.

As Ms Davies said, TMA s 30A(4) provides that those assessments could not be altered “except in accordance with the express provisions of the Taxes Acts”. An example of such a provision is TMA s 32, which allows HMRC to vacate all or part of an assessment previously made if there has been “double assessment”, so that “a person has been assessed to tax more than once for the same cause and for the same chargeable period”.

TMA s 31(1)(d) provides that a person has a right of appeal against “any assessment to tax which is not a self-assessment” and it was common ground that this included the discovery assessments issued to Mr Miah.

TMA s 31A is headed “Appeals: notice of appeal” and includes the following provisions:

There was no dispute that on 27 February 2020, Ms Rahman appealed the discovery assessments to HMRC on behalf of Mr Miah in accordance with TMA s 31(1A).

The next relevant provision is TMA s 49A, which is headed “Appeal: HMRC review or determination by tribunal”. It reads:

That final subsection refers to TMA s 54, which is headed “Settling of appeals by agreement”. It begins:

The “like consequences” referred to in TMA s 54(1) can be found at TMA s 50(10). This provides that “where an appeal is notified to the tribunal, the decision of the tribunal on the appeal is final and conclusive”. In other words, once an issue has been settled under TMA s 54, it is treated as if it has already been finally and conclusively decided by the Tribunal, and it is therefore not possible to notify an appeal on that issue to the Tribunal.

I reject Mr Rippon’s submission that the statutory review encompassed the rental income as well as the car benefit. I instead agree with Ms Davies that the rental income was settled by agreement between the parties on 11 December 2020, and that Ms Rahman confirmed this on 20 December 2020, see §23. It is also clear from the content of the review letter that Ms Smith was only reviewing the car benefit.

As a result, TMA s 54 applied, so it is not possible for Mr Miah to notify an appeal to the Tribunal in relation to the rental income. Rule 8(2) of the Tribunal Rules provides that:

Where TMA s 54 applies, the Tribunal has no jurisdiction to decide the appeal, and I therefore strike out the part of the proceedings which relates to the rental income.

Ms Parker notified Mr Miah on 12 November 2019 of her “view of the matter in question”, confirming that the position remained as set out in the discovery assessments. On 20 December 2019. Ms Rahman notified Ms Parker that Mr Miah wanted a statutory review of the car benefit issue.

TMA s 49B is headed “Appellant requires review by HMRC”, and reads:

As is clear from the wording of that section, HMRC’s “view of the matter” is to be provided after the request for a review, not (as in this case) before the request has been made. However, Mr Rippon did not seek to argue that the statutory review was invalid as a result, and I agree. Legislation must be interpreted purposively, and the purpose of this provision is to provide the parties with a clear starting point from which to begin the review. In a case such as this, where discussions about the assessments had continued for almost a year, and where the HMRC officer then crystallised the position by issuing her view of the matter, that statutory purpose had been met.

The legislation then sets out at TMA s 49E, the nature of the review which HMRC is to conduct. Subsection (5) provides that “the review may conclude that HMRC's view of the matter in question is to be (a) upheld, (b) varied, or (c) cancelled”.

TMA s 49F is headed “Effect of conclusions of review”, and reads:

TMA s 49G provides that if a person wishes to challenge a review decision at the Tribunal, that person must notify the appeal within 30 days of the date of the review decision; a person can only notify his appeal late if the Tribunal gives permission.

The effect of the above provisions is that:

Mr Miah did not notify an appeal to the Tribunal against the review decision within the 30 days, and his appeals were thus deemed to have been settled under TMA s 54, unless he applied for and received permission to notify the appeals late.

At the time the October Documents were issued there had been no application to the Tribunal for permission to notify appeals against the review decisions after the 30 day time limit. The text of those Documents therefore correctly stated that the appeals had been settled under TMA s 54, because they were deemed to have been so settled by TMA s 49F(2). However, the October Documents were incorrect to say that Mr Miah had any right to resile from that settlement, because that right is removed by s 49F(3).

I agree with Ms Davies that the October Documents could not, in law, have been new discovery assessments with their own rights of appeal, because:

If the discovery assessments had been new decisions, they would have required Mr Miah to appeal to HMRC, see TMA s 31(1A) cited at §47. Ms Rahman did not do that. She instead filed a Notice of Appeal with the Tribunal, and copied that Notice to HMRC. The Tribunal has no jurisdiction to hear an appeal that has not first been made to HMRC, see Flash Film Transport Ltd v HMRC [2019] UKFTT 4 (TC) at [73]-[77], recently confirmed in Rotaru v HMRC [2022] UKFTT 00080.

It follows from the above analysis that the October Documents did not give Mr Miah a new right to notify his appeals against the parts of the assessments relating to the car benefit within 30 days of their issuance.

Instead, he could only prevent the review decision from constituting a deemed agreement under TMA s 54 if he obtained permission from the Tribunal to notify his appeal after the expiry of the 30 day time limit.

As set out at §33(4), Mr Rippon had submitted that, if he was wrong in his primary submissions as to the nature and effect of the October Documents, so that Mr Miah was out of time to notify his appeals, the Tribunal should allow him to notify his appeals late. I now consider that alternative submission.

I first set out the relevant case law and then apply it to the facts of the case in the light of the parties’ submissions.

The UT decisions in Martland and Katib relate to failures to make appeals to HMRC within the relevant time limit, rather than to failures to notify appeals to the Tribunal. However, it was common ground that I should take the same approach when deciding whether to allow Mr Miah to notify his appeal late.

In Martland, the UT set out Rule 3.9 of the Civil Procedure Rules, which reads:

At [44] the UT set out the following three stage approach by way of guidance to this Tribunal:

establish the length of the delay and whether it is serious and/or significant;

establish the reason(s) why the delay occurred; and

evaluate all the circumstances of the case, using a balancing exercise to 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, and in doing so 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”.

The UT also said at [46]:

I now consider and apply the three stage approach in Martland.

The statutory time limit is 30 days after HMRC issued the review decision, see TMA s 49G. Mr Miah was therefore required to notify his appeal within 30 days of 12 February 2020.

The Notice of Appeal filed on 17 November 2020 did not include an application to notify the appeal late; that application was instead made on 14 July 2022, the day before this hearing, by being contained within Mr Rippon’s skeleton argument.

The reason the application was not included in the Notice of Appeal was because Ms Rahman had misunderstood the October Documents. Ms Davies accepted that the confusing wording of those Documents gave Mr Miah a good reason for the delay as between the Notice of Appeal and the filing of the skeleton argument, and it was common ground that the application should be approached on the basis that the delay was from 12 March 2020 to 17 November 2020, just over eight months.

In Romasave v HMRC [2015] UKUT 254 (TCC), the UT said at [96] that:

The delay in Mr Miah’s case was almost three times longer than the period referred to in Romasave. It was clearly serious and significant.

Mr Rippon sought to rely on Ms Rahman’s witness evidence as providing the reasons for her delay. This said that:

Mr Rippon asked the Tribunal to accept that the above statements were factually correct, and to find that they provided good reasons for the delay.

Ms Davies did not dispute that Ms Rahman’s father passed away on 22 December 2019, but submitted that:

Mr Rippon responded by saying that although lockdown began after the end of the 30 day period, the pandemic was nevertheless relevant, because had it not occurred, the appeal would have been notified without such a long period of delay.

It was not disputed that Ms Rahman’s father had passed away on 22 December 2019 following a terminal illness, and I find this to be a fact. However, I agree with Ms Davies that Ms Rahman was nevertheless able to communicate with Ms Parker both before and after her father’s death, and I therefore find that she could also have notified the appeal. I also agree that (a) the lockdown arrived too late to provide a reason for the delay; (b) there is no basis on which I could make a finding of fact as to the effect of the unparticularised further bereavements; and (c) there is no reliable evidence as whether, or if so how, he pandemic had “impacted” on the notification of the appeal. It follows that there is no good reason for Ms Rahman’s delay in notifying the appeals late.

Mr Rippon also submitted that, even if Ms Rahman did not have a good reason for the delay, Mr Miah had reasonably relied on her and her firm, and that reliance was a good reason for his delay. Mr Rippon provided a printout from the internet which said that Tax Resolute marketed itself as “HMRC Tax Investigation specialists” and “experts in tax disputes” which could “help keep your company safe from adverse tax enquiries” and would “take care of your tax investigation”. It was therefore, he said, reasonable for Mr Miah to trust Ms Rahman and Tax Resolute to deal with all aspects of the case.

For her part, Ms Davies relied on Katib, where the UT said at [49] (their emphasis):

The UT returned to this issue at [54], saying:

The UT then cited the Court of Appeal’s judgment in Hytec Information Systems v Coventry City Council [1997] 1 WLR 666 (“Hytec”). Ward LJ, giving the leading judgment, said at p 1675:

I agree with Ms Davies that in accordance with Katib and Hytec the Tribunal should not normally find that a person’s reliance on his adviser provides a good reason for delay. I considered whether the facts of Mr Miah’s case took him outside that normal range, and decided that they did not. That is because:

I therefore find that Mr Miah’s reliance on Ms Rahman and/or Tax Resolute does not provide him with a good reason for the delay.

The third step in the Martland approach is to consider all the circumstances, and then to carry out a balancing exercise. I take into account the following factors:

In balancing the circumstances, it is clear that the weighting overwhelmingly favours HMRC. I therefore refuse Mr Miah permission to notify his appeal late.

As noted earlier in this decision, Mr Miah had also been charged with penalties for all years for which discovery assessments had been issued, namely 2009-10 through to 2016-17.

The Notice of Appeal referred only to the October Documents, each of which included the sentence “I have written to you separately about the penalties that we are charging you for the inaccuracies in your return”. No copy of that other correspondence was attached to the Notice of Appeal or included in the Bundle.

Mr Rippon said he understood that suspension had been agreed as between Ms Rahman and HMRC, but had no instructions on that point. For completeness, I record that this decision does not relate to the penalties.

To the extent that Mr Miah sought to appeal against the rental income part of the assessments made on him for the years 2009-10 through to 2016-17, that issue was settled between the parties; the Tribunal had no jurisdiction to decide that issue, and that part of his appeal is thus struck out for want of jurisdiction.

To the extent that Mr Miah was seeking to appeal against the car benefit part of the assessments made for 2012-13 to 2016-17, he was out of time to notify his appeal to the Tribunal, and so required permission to do so. For the reasons explained above, permission to notify his appeal late is refused. As a result, the conclusions of the statutory review are deemed to have been agreed between the parties under TMA s 49F(2).

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.