Samuel Halpern v The Commissioners for HMRC

This is the application by HM Revenue and Customs (“HMRC”) that Mr Halpern’s appeal, against a decision to refuse to allow an amendment to a land transaction return, be struck out.

Rule 8 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (insofar as applicable to this case) provides:

It is clear from the use of “may” in Rule 8(3), which in contrast to the use of “must” in Rule 8(2), that the Tribunal has a discretion as to whether or not to strike out an appellant’s case under Rule 8(3). But, if the Tribunal does not have jurisdiction in relation to the matter under appeal, it has to strike it out – irrespective of any underlying merits of the Appellant’s case.

On 28 May 2022 Mr Halpern’s representative wrote to HMRC requesting a refund of the 3% higher rate of SDLT on additional dwellings paid by Mr Halpern upon the purchase of a property in Salford.

On 7 July 2022 an officer acting on behalf of the HMRC refused to amend Mr Halpern’s land transaction return and the refund of the higher rates paid in respect of the property. Following correspondence between the representative and HMRC, the officer wrote to the representative on 13 September 2022 confirming his decision to refuse to amend the land transaction return.

On 8 October 2022 Mr Halpern appealed to the FTT against that refusal to amend the land transaction return.

The reasons for the officer’s refusal are the issues in dispute and give rise to this appeal. These issues relate to the time limits set out in Schedule 4ZA, Finance Act 2003, and whether the amended provisions of paragraph 3(7A) allow an extension to the three-year period otherwise specified in that paragraph.

On 30 January 2023, HMRC applied to the Tribunal to strike out the appeal. A copy of the application was sent by the Tribunal to Mr Halpern on 12 September 2023, requesting his response within 28 days. On 2 October 2023, Mr Halpern applied for an extension of time of 14 days to file his response, which I have granted. His response was filed on 9 October 2023.

Paragraph 35, Schedule 10 of Finance Act 2003 sets out the circumstances under which a taxpayer may bring an appeal to the FTT in respect of SDLT:

HMRC submit that Mr Halpern is seeking to appeal a decision that is outside the provisions of paragraph 35. As the matter under appeal is not an appealable decision, Mr Halpern cannot bring an appeal against that decision before the FTT. In consequence, HMRC submit that the appeal should be struck out under Rule 8(3) as it has no realistic prospects of success.

Mr Halpern submits that the appeal should not be struck out in advance of any hearing because:

This Tribunal only has jurisdiction to determine appeals in circumstances where that jurisdiction is conferred by legislation. Absent legislative authority, this Tribunal has no jurisdiction in respect of an appeal – and the appeal must be struck out under Rule 8(2).

The jurisdiction conferred on this Tribunal in respect of appeals relating to SDLT is set out in paragraph 35, Schedule 10 of Finance Act 2003. The refusal by HMRC to allow an amendment to a land transaction return is not one of the matters specified in paragraph 35, and therefore the legislation does not confer jurisdiction on this Tribunal to hear an appeal against HMRC’s decision in this case. It follows that this appeal must be struck out under Rule 8(2).

In fairness to Mr Halpern, I deal with his submissions as follows:

The appeal is struck-out.

I note that although no appeal lies to this Tribunal, Mr Halpern is not entirely without remedies in respect of HMRC’s refusal. He could have applied to the High Court for judicial review of HMRC’s decision – but I recognise that the time limits for such an application have long since expired. Mr Halpern could also make an application to the Revenue Adjudicator, who can investigate whether HMRC applies its policies and guidance fairly, and how HMRC exercises its discretion. Details about the Adjudicator and how to make applications to him are available on his website at https://www.gov.uk/government/organisations/the-adjudicator-s-office.

If Mr Halpern considers that the Tribunal ought to have jurisdiction to determine appeals against refusals by HMRC to permit amendments to land transaction returns, as this would require an amendment to paragraph 35, Mr Halpern would need to raise the matter with his MP.

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.