Per Wimmer & Anor v The Commissioners for HMRC

The applicants, Mr Per Wimmer and Wimmer Financial LLP, apply to the Upper Tribunal (Tax and Chancery) for permission to appeal against the decision of the First-tier Tribunal (“FTT”) released on 10 July 2025 (“the FTT Decision”) following a hearing which took place on 1 April 2025.

The applicants renewed their application for permission to the UT. I had previously refused permission to appeal in my decision of 11 March 2026 (“the paper refusal decision”). This is my decision following the oral renewal of the application heard on the 17 April 2026 and, following my direction, the written submissions HMRC filed on 1 May 2026 and the response the appellant filed on 5 May 2026. The first applicant Per Wimmer represented the applicants and Alexander Barrett of HMRC Legal Group appeared on behalf of HMRC. I was grateful for both their submissions.

The FTT Decision concerned whether the applicants should be allowed to bring a late appeal in relation to (in Mr Wimmer’s case a number of discovery assessments and closure notices for tax years 2007-8 to 2020-1 (except for 2015-16) totalling £866,106.25 and in the Wimmer Financial LLP’s case appeals against closure notices for 2017-18 to 2020-21 which reallocated various amounts of share of profits (£254,221) to Mr Wimmer.

The appeal was late by between 96 days and 292 days. The FTT found the delays of between 96 and 292 days to be serious and significant and that the appellants had no good reason for failing to comply with the 30‑day statutory appeal time limits. It rejected the contention that a June 2023 letter amounted to a protected appeal, found the appellants had continued to focus on settlement discussions rather than appealing, and held that adviser failures, financial pressures and focus on averting bankruptcy concerns did not justify the delay. Balancing all circumstances under Martland v HMRC [2018] UKUT 178 (TCC), the FTT held finality and efficient conduct outweighed any prejudice to the appellants and refused the applicants permission to bring their late appeals.

An appeal to the Upper Tribunal from a decision of the First-tier Tribunal can only be made on a point of law (s11 of the Tribunals, Courts and Enforcement Act 2007). It is therefore the practice of the Upper Tribunal in this Chamber only to grant permission to appeal where the grounds of appeal disclose an arguable error of law on the part of the FTT.

The applicants’ written grounds of appeal may be summarised as follows:

The issue before the FTT of whether to permit the late appeals was a matter of judicial discretion. The relevant bases (as suggested by the Upper Tribunal in Martland (at [56]) upon which that discretion can be interfered with on appeal are those outlined in Walbrook Trustees v. Fattal and Ors [2008] EWCA 35 Civ 427 at [33]. The appellate court should not interfere with case management decisions made by a judge who

“…has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless [the appellate court is] satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

The grounds focussed on at the oral hearing were Ground 4 (error in evaluating merits) and Ground 5 (error in overlooking significant prejudice to Mr Wimmer if application were refused). Mr Wimmer developed the following principal strands of argument which I deal with in turn.

First, he placed particular reliance on what he described as the “non-dom” issue. He contended that, as a Danish national who was non-domiciled in the United Kingdom until 2013, foreign income arising in the tax years 2007–08 to 2012–13 ought to have been taxed on the remittance basis. Highlighting that he came to the United Kingdom in part to benefit from the “non-dom” regime, which he characterises as providing for foreign income to be tax free unless remitted, and that HMRC cannot “a decade later” depart from that position. He submitted that HMRC had failed to apply that legislative framework and that this omission constituted a fundamental legal error affecting a substantial proportion of the assessments.

HMRC did not dispute the existence or policy rationale of the “non-dom” regime. Their position, rather, is that the remittance basis is not automatic. Both before and after April 2008 it applies only where the statutory requirements are met, including the making of a valid claim or satisfaction of the conditions for automatic application.

The appellant’s submission therefore rests on the assumption that “non-dom” status of itself confers a general exemption from UK tax on foreign income unless remitted. As HMRC point out, that is not an accurate statement of the statutory scheme. Entitlement to the remittance basis depends on compliance with specific statutory conditions, and where those conditions are not met the default arising basis applies.

As set out in the written representations that were directed following the hearing and in relation to which the appellant had the opportunity to reply, the remittance basis is not the default position post-2008; rather, it applies only where the statutory conditions are satisfied, either by a valid claim under section 809B ITA 2007 or by operation of section 809D.

In relation to 2007–08, HMRC’s position is that the remittance basis was in fact applied in accordance with the pre-2008 rules, with tax charged only on amounts received in the United Kingdom. For 2008–09 and 2009–10, HMRC state that no claim under section 809B was made and the statutory conditions for automatic application were not satisfied, such that the arising basis applied by default. For 2010–11 to 2012–13, HMRC’s case is that although the appellant indicated that the remittance basis should apply, the factual preconditions for the automatic regime were not met, including because unremitted foreign income exceeded the statutory threshold (£2000), and no valid claim was made. For subsequent years, the position is still further against the appellant in that he was, on his own case, no longer entitled to rely on the “non-dom” regime in the same way. HMRC thus contend that in the relevant years the relevant conditions for remittance basis were not met, either because no valid claim was made or because the statutory requirements for automatic application were not satisfied. On that basis, the arising basis applied as a matter of law.

The appellant’s submissions, together with his written grounds and further representations, and the material before the FTT disclosed, indicate, at most, a dispute requiring detailed factual investigation as to whether the statutory conditions for the remittance basis were met. They did not disclose a case which was obviously or self-evidently strong. In that regard, the FTT was entitled to proceed on the basis that the merits did not weigh materially in favour of granting permission, applying the guidance that only obviously strong or weak cases should materially affect the Martland stage 3 balancing exercise.

It is not clear to me, in any event, that beyond indicating that the assessment figures were under challenge the appellant had raised his challenge to the inapplicability of the arising basis for the relevant years in the level of specificity that would have enabled the FTT to straightforwardly see that his arguments were overwhelmingly strong. I have considered the appellant’s more specific reliance on various paragraphs of the skeleton argument before the FTT as demonstrating that the “non-dom” issue was clearly raised before the FTT. Those passages, however, do not advance a developed legal contention as to the applicability of the remittance basis. They record the procedural history, identify the years under assessment, and refer in general terms to offshore matters, penalties and time limits. They do not set out the statutory conditions for the remittance basis, nor explain on a year-by-year basis how those conditions were said to be satisfied or how HMRC’s approach was said to be incorrect. It is difficult to see how in those circumstances the FTT can be said to have erred in law by failing to give weight to a merits argument that was not clearly or coherently advanced before it.

Secondly, Mr Wimmer advanced a case of alleged double taxation arguing that he had effectively been taxed more than once on the same underlying income giving rise to as he put it a “200% rate”. In summary, he submitted that profits of Wimmer Financial LLP had been attributed to him personally in full whilst, at the same time, the same profits had been subject to taxation within a corporate vehicle associated with the partnership.

HMRC’s case, however, is that the relevant adjustments involve a reallocation of income, in particular in relation to partnership profits, rather than duplication of charge.

In relation to the years 2007–08 to 2012-13, the appellant’s argument (dealt with below) is directed to the size of the assessments as compared with particular figures, such as the LLP’s reported profits. There was nothing to indicate however that the same income was brought into charge twice in those years. Similarly in relation to 2013–14 and 2014–15, the appellant’s arguments focus on the validity of discovery assessments and the use of estimated figures. But there is no indication that HMRC treated the same profits as chargeable twice within those years.

For 2016–17 onwards, the appellant argues that the structure of Wimmer Financial LLP, together with a corporate member, resulted in profits being taxed twice. However, the FTT recorded HMRC’s position that, in relation to the LLP, profit shares were adjusted so that income previously allocated between partners was reallocated to the appellant alone. On that basis, the adjustment is substitutive: it moved the charge from one taxpayer to another, rather than imposing two parallel charges on the same income. In particular, for the years 2017–18 to 2020–21, the FTT found that HMRC amended the partnership returns so that profits previously split between the appellant and a corporate member were attributed entirely to the appellant. There is no suggestion in the FTT’s findings that the corporate member was taxed on those same profits once reallocated. The appellant’s contention of duplication therefore proceeds on an assumption not reflected in the findings.

In summary when the appellant’s “200% tax” argument is examined against the year-by-year structure of the assessments and the FTT’s findings as to their basis, there is no material which demonstrates duplication of charge in any particular year still less an obvious or self-evident error, that could be said to have produced, as the appellant had argued, a “very serious legal mistake” which would compel the conclusion that the FTT ought to have treated the appeal as overwhelmingly strong.

Accordingly, this aspect of the appellant’s case does not provide any basis for concluding that the FTT erred in its assessment of the merits or in the exercise of its discretion.

The appellant also highlighted the 2008 year where he contrasts an LLP profit of £50,000 with a much larger assessed liability. As recorded in the FTT decision (at [5]), the assessment (which for 2007-8 was £43,070.00) followed a broader analysis of the appellant’s bank statements and identified multiple sources of income, including UK income, dividends, foreign income, rents and gains. (For 2007–08, HMRC applied the remittance basis so that foreign income was taxed to the extent remitted to the UK). The appellant’s comparison between the LLP’s reported profit of £50,000 and the overall liability does not necessarily undermine HMRC’s case. It appears HMRC’s figures rested on aggregate taxable amounts from a range of sources rather than simply the LLP profit.

Thirdly, Mr Wimmer referred to the position of Wimmer Family Office Ltd (“WFO”). He contended that that company had generated little or no profit and in some periods losses, yet had nevertheless been subjected to tax liabilities, penalties and interest. He submitted that this illustrated the wider unreliability of HMRC’s approach to his overall tax affairs. However, as I pointed out at the oral renewal hearing, that entity is not itself the subject of the appeals before the FTT, which concern the appellant’s personal liabilities and the LLP.

The appellant also relied, in the course of the oral renewal hearing, on the position of WFO in support of his broader contention that HMRC’s figures, in particular in relation to dividend income, must be wrong. His argument was that WFO had generated only modest profits, or in some periods losses, over a number of years (approximately 2014 to 2022), and that it was therefore difficult to see how it could have funded the level of dividends which HMRC are said to have brought into charge. (In advance of the oral renewal hearing he had provided the management accounts for Wimmer Family Office Ltd for the period 2014 to 2024 showing modest revenues and, in a number of years, losses or limited profits). On that basis he suggested that HMRC must have over-assessed dividend income.

The argument appears to relate principally to the later years of the enquiry, broadly 2014 onwards, when dividend income features in HMRC’s reconstruction of the appellant’s income streams. However, as recorded in the FTT decision, HMRC’s case is not confined to dividends from a single corporate source. Rather, it rests on a wider analysis of bank statements and identifies multiple categories of income, including dividends, foreign income and other receipts. The suggestion that all dividend income must have derived from WFO is not reflected in HMRC’s case as set out in the materials.

At its highest the applicants therefore raises a general challenge to the correctness of HMRC’s computations. The FTT would plainly not have been dutybound on the basis of what was advanced to have found the merits of the dispute on quantum were overwhelmingly in the applicants’ favour.

The applicants further submits that HMRC have imposed tax liabilities going back more than 17 years and that, in consequence, the discovery assessments and closure notices are invalid, in particular in respect of the 2007–08 tax year. In relation to that year the discovery assessment was issued on 31 May 2023, more than 15 years after the end of that year. The applicants submits that this renders the assessment invalid.

However, that submission proceeds on an incomplete analysis of the statutory time limits. The statutory scheme provides for extended time limits of up to 20 years where a loss of tax is attributable to deliberate conduct. Whether those provisions are validly engaged is a fact-sensitive question whose merits the FTT would not necessarily have been able to determine as overwhelmingly in the appellant’s favour . The mere fact that assessments extend beyond the ordinary four or six year limits does not of itself render them invalid, nor does it disclose any arguable error of law in the FTT’s decision.

The appellant’s generalised reliance on HMRC having used estimated figures based on a presumption of continuity similarly does not advance matters. Such points go to the factual correctness of the assessments and would require detailed evidential examination at a substantive hearing. They would not require the FTT to find that the applicants had an overwhelmingly strong case on the merits.

Mr Wimmer also emphasised the severity of the consequences if permission were to be refused, including the risk of bankruptcy and the loss of his FCA regulatory approval and his consequent ability to make a livelihood and provide for his family. He argued the prejudice to him was materially greater than any prejudice to HMRC and that the FTT failed adequately to take this into account, in particular by not addressing the regulatory consequences said to flow from the tax assessments. These points do not disclose any arguable error of law.

First, there is nothing in the materials to suggest that any detailed or specific case regarding the loss of FCA authorisation was squarely put before the FTT. The FTT was plainly aware, as it recorded, that refusal of permission would deprive the appellant of the opportunity to challenge substantial liabilities and would have serious financial consequences. In the absence of evidence that a distinct and particularised prejudice arising from loss his FCA license was advanced, the FTT cannot be said to have erred by failing expressly to address it.

Second, even taking the appellant’s case at its highest, serious adverse consequences are a common feature of disputes involving substantial tax liabilities and such consequences, even where grave, do not necessarily of themselves outweigh the importance of compliance with statutory time limits or the public interest in finality. Even if the regulatory impact had been specifically raised it would not have required that the FTT decide the application in the appellant’s favour. The relevant question on appeal is not whether a different tribunal might have given greater weight to those consequences, but whether the conclusion reached by the FTT was one which no reasonable tribunal, properly directing itself, could have reached. In light of the length of delay (between 96 and 292 days) the absence of a good explanation for the delay, and the interests of finality and efficiency it was at least open to the FTT to consider the application should be denied despite the particular level of prejudice that would arise.

In those circumstances, the appellant’s reliance on the severity of the consequences, whether financial or regulatory, does not disclose any arguable error in the FTT’s balancing exercise. The decision reached was one that was at least open to it on the material before it.

To the extent the applicants pursue any of the further grounds of appeal (Grounds 1 to 3 and 6) or further points under Grounds 4 and 5 mentioned in the written application then those do not disclose any arguable error of law for the reasons already covered in the paper refusal decision.

Having carefully considered the various points raised by the applicants both in the written application and in the oral submissions made, I am regrettably not persuaded that any pass the threshold of identifying any arguable error of law in the FTT Decision.

Permission to appeal is therefore refused.