Aminur Rahman v The Director Of Border Revenue

The hearing took place on 3 June 2025 using the Teams Video system. The documents to which we were referred were an appeal bundle of 166 pages (including within it a statement of objection from the Respondents). Following directions given at the hearing, we were also sent a copy of an email from Mr Rahman dated 30 July 2023 and a pro forma copy of an appeal notice with the footer “HMRC 09/22”. Mr Rahman gave evidence in person.

Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely in order to observe the proceedings. As such, the hearing was held in public.

The Tribunal decided that the appeal should be dismissed.

This was an appeal against a decision (the “Refusal Decision”) of the Director of Border Revenue (“DRB”) refusing to conduct a review of a decision (the “Original Decision”) of DRB made on 17 March 2023 to charge a restoration fee and penalty on Mr Rahman. DRB had made the Refusal Decision on the grounds the request for a review of the Original Decision had been made late.

We were presented with two possible tests to apply in assessing whether to allow this appeal. The first being the “reasonable excuse” test and the second being the “relief from sanctions” (“Martland”) test. We considered the proper test was the Martland test. But in any event, whichever test was to be applied, we concluded that the appeal should be dismissed. In particular that was because we did not have sufficient evidence to show that steps had been taken by Mr Rahman to appeal against the Original Decision until long after expiry of the statutory period for appeal.

We found the following facts:

Save for the question of whether he was issued a Seizure Information Notice (Form 156), these facts were not disputed by Mr Rahman. The issue of whether he had been given the Form was potentially important. Mr Rahman’s evidence was that he did not remember being given the Form 156 and that he had used internet sources to identify how to challenge the Original Decision. However, in cross examination Mr Rahman accepted it was possible he or his friend had been given that Form 156. He explained that there had been a heated debate at the airport involving the friend accompanying him and the BFO and that he and his friend had left in a hurry. We noted that in his letter of 28 March 2024 Mr Rahman stated that “I was given an address to write to appeal… this was within the 30 day timeframe” (although we understood that Mr Rahman’s sister had assisted in writing this letter and she may have misunderstood what had happened at the airport). While the reference to a 30 day timeframe is erroneous, this seems likely to be a reference to Mr Rahman having been given details of how to challenge the Original Decision when he was at the airport. On the balance of probabilities and taking into account that Mr Rahman’s evidence was that it was possible he had been given a form, we concluded that Mr Rahman (or his friend on his behalf) had been given Form 156 at the airport.

Since this was an appeal against a refusal to review a decision to charge a penalty, the applicable law is s14 and s14A Finance Act 1994. These provide as follows.

Section 14(2):

“(2)

Any person who is (a) a person whose liability to pay any relevant duty or penalty is determined by, results from or is or will be affected by any decision to which this section applies, (b) a person in relation to whom, or on whose application, such a decision has been made, or (c) a person on or to whom the conditions, limitations, restrictions, prohibitions or other requirements to which such a decision relates are or are to be imposed or applied, may by notice in writing to the Commissioners require them to review that decision.”

Section 14(3) defines the time limit for requesting a review as follows:

“The Commissioners shall not be required under this section to review any decision unless the notice requiring the review is given before the end of the period of 45 days beginning with the day on which written notification of the decision, or of the assessment containing the decision, was first given to the person requiring review”.

Section 14(4) provides:

“…it shall be the duty of the Commissioners to give written notification of any decision to which this section applies to any person who (a) requests such a notification; (b) has not previously been given written notification of that decision; and (c) if given such a notification, will be entitled to require a review of the decision under this section.”

Section 14A [Review out of time] provides:

“(1)

This section applies if (a) a person may, under section 14(2), require HMRC to review a decision, and (b) the person gives notice requiring such a review after the end of the 45 day period mentioned in section 14(3).

(2)

HMRC are required to carry out a review of the decision in either of the following cases.

(3)

The first case is where HMRC are satisfied that (a) there was a reasonable excuse for not giving notice requiring a review before the end of that 45 day period, and (b) the notice given after the end of that period was given without unreasonable delay after that excuse ceased.

(4)

The second case is where (a) HMRC are not satisfied as mentioned in subsection (3), and (b) the appeal tribunal, on application made by the person, orders HMRC to carry out a review.”

We were presented with two alternative tests as to what was the right approach to determine whether to grant this application. The first being the “reasonable excuse” test and the second being the “relief from sanctions” (“Martland”) test. We concluded that we agreed with Judge Popplewell’s reasons and conclusion in paragraph 28 of SC Duvenbeck Logistik SRL v The Director of Border Revenue [2021] UKFTT 319 (TC) that our jurisdiction is appellate and that we are not restricted to considering only reasonable excuse when deciding whether or not DRB should be ordered to carry out a review out of time. Instead, the three-stage test in Martland v HMRC [2018] UKUT 178 (TCC) should be applied. Neither party disagreed that this was the correct test. The Martland test is to:

In case we were wrong about the correct test being the Martland test, we also considered the alternative test being in summary that we should consider only whether Mr Rahman had a reasonable excuse for failing to meet the 45 day deadline and gave notice after the end of that period without unreasonable delay after that excuse ceased.

Applying the Martland approach, our consideration was a follows.

We first considered the length of the delay. The earliest potential request for a review for which we had clear evidence was made on 30 July 2023, which is 134 days after 17 March 2023. Accordingly, the request for review was made 89 days after the expiry of the 45 day period specified in s14(2).

We were invited by DBF to consider that the 30 July 2023 email was not a request for a review for the purposes of s14(2) and therefore the letter dated 28 March 2024 was the request for a review. It was made more than 330 days after the expiry of the 45 day period.

A delay of 89 days in the context of a 45 day appeal period is clearly serious and significant; if the period is over 330 days the delay is even more serious and significant.

Mr Rahman’s evidence was that:

There are suggestions in the written evidence that Mr Rahman attempted to contact DBF before 30 July 2023. For example the 30 July email refers to Mr Rahman having “tried the relevant way of dealing with this matter but to no avail..”; and the 28 March 2024 letter states “… I initially contacted the complaints department twice via email and post when I was first charged …”.

On the other hand, the notice of appeal states “I initially wrote to Gatwick border force and completed the appropriate form I was advised to do so by the officers to make my appeal. This letter was sent by post. I waited for a response and then made contact again”. This suggests that rather than needing to download a form from the internet, Mr Rahman was given a form at Gatwick airport to complete in order to make an appeal.

We considered that Mr Rahman was trying to present his honest recollections of the events and the correspondence he had sent to DBF, but that with the passage of time his recollections are not clear enough for us to be able to find any facts as to what contact and when he had with DBF in the period 17 March 2023 and 30 July 2023. For the requirements of s14(2) to be met, Mr Rahman would have had to give a notice requiring a review within the 45 day period; we did not have sufficient evidence to be able to find that that had happened. Even the 30 July 2023 email was not a completely clear notice for the purpose of s14(2) since it states “I believe the tax was wrongly imposed, can you help me to resolve this or show me where I can appeal this matter”; that could be read as a request for advice on what steps to take in order to challenge the decision rather than being a formal request for a review of the decision for the purposes of s14(2). On balance we think the 30 July 2023 e-mail should be treated as a request for a review for the purposes of s14(2), but the lack of clarity of the wording in this e-mail is indicative that any correspondence Mr Rahman may have sent before 30 July 2023 might well not have amounted to a request for the purposes of s14(2).

In any event, for the purposes of the Martland test, our summary of the reason for the delay between 17 March 2023 and 30 July 2023 was that Mr Rahman was probably thinking about what to do and may have sent some correspondence to DBF but it was not clear to us what may have been sent or when.

If we were considering the delay between 17 March 2023 and 28 March 2024, our summary of the reason for the delay was that Mr Rahman was travelling and/or busy with other matters to the effect that pursuing a challenge to the Original Decision was not at the top of his agenda.

Considering all of the circumstances:

Taking these factors into account we were of the view that the circumstances suggested on balance that the appeal should be refused.

For the reasons set out above, we refused the appeal.

Applying the alternative test, we considered if Mr Rahman had a reasonable excuse for failing to meet the 45 day deadline and gave notice after the end of that period without unreasonable delay after that excuse ceased. For the reasons set out in [25(2) to (4)] we found that he did not have a reasonable excuse for failing to meet the 45 day deadline.

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.