Steven James Czerwionka v The Commissioners for HMRC

The appellant’s case is that he was pressured in a HMRC telephone call to pay immediately rather than to appeal, at a time when he was vulnerable. He also says he made repeated subject access requests for the recordings of those calls but received only brief written summaries. He says the FTT was aware of both points yet did not address them in its evaluation of his reasons for delay.

The materials before the FTT show he did raise these points. The appellant’s witness statement and his written objection referred to his Subject Access Requests for HMRC’s notes and the recording of a telephone call dated 7 February 2019. Before the FTT, HMRC’s written objection strongly denied that any pressure was applied. It is less clear whether HMRC disputed the appellant’s evidence that he felt under pressure. The issue of whether the appellant was pressured or reasonably apprehended such pressure was potentially relevant to his explanation for his failure to appeal in time. As the FTT Decision did not refer to this when setting out and evaluating his reasons for delay, it is at least arguable that the FTT failed to take into account a relevant consideration.

Permission to appeal is granted on Ground 1.

The appellant’s case was that he did not authorise Capital to file his self-assessment returns. That case appears in his notice of objection before the FTT and in a letter in the same format as his other documents described as “witness statements”. Those documents contained both evidence and submissions.

The FTT’s reasons do not engage with this issue. While the FTT recorded at [5] that the appellant “enlisted the services of Stefan Brown and Richard Hall of Capital to submit tax returns on his behalf for the tax year ending 5 April 2017”, that appears as a statement of the FTT’s understanding of the background facts. It did not purport to set out the FTT’s view of the appellant’s case regarding the self-assessments not being authorised when considering the merits of his appeal at stage three. It is at least arguable that the FTT erred by not addressing the authorisation issue when evaluating the merits in outline.

As to the significance of any such error, in my earlier refusal I noted that the appellant had not set out any detail of his dealings with Capital and that the WhatsApp messages he had put before the FTT were not inconsistent with authorisation. Having now seen the FTT bundle and what was advanced by HMRC, I am satisfied that any failure to consider the case on lack of authorisation could be potentially material. There is no indication that HMRC had put forward any countervailing evidence of actual authorisation or indeed what evidence they would advance on the issue. (HMRC’s objection submissions suggested the appellant had authorised “a claim”, but did not address the distinction the FTT drew in Robson v HMRC [2023] UKFTT 226 (TC) between authorisation of a return and authorisation of a claim. Nor for instance was any case set out that it was sufficient from HMRC’s point of view that the agent had apparent authority). In those circumstances it is at least arguable that the FTT could, on the basis of what was before it, without detailed investigation of the merits or fact-finding on disputed facts have treated the merits in the appellant’s favour as overwhelmingly strong or at least strong enough to carry material weight at stage three. Permission is granted on Ground 2.

The appellant argued that allowing a late appeal would cause no prejudice to HMRC because HMRC remained engaged in litigation on similar issues involving the same agents, and the evidence remained available. He relied on an FTT decision Huntly v HMRC [2022] UKFTT by way of analogy where the point was made that there would be limited time and cost associated with adding the taxpayer’s appeal to the other cases proceeding in the FTT. The FTT had erred in not taking into account this lack of prejudice. Given the FTT Decision did not address this point this error of law is at least arguable.

Permission to appeal Ground 3 is granted.

It is convenient to address these two grounds together. Under Ground 4 the appellant says the FTT wrongly proceeded (at [30] of its decision) on the basis that in his written and oral submissions the appellant’s case revolved simply on his later discovery of favourable FTT decisions. That was incorrect because his case had in fact relied on multiple factors which included his mental health difficulties, personal circumstances, the pressure he says he felt from HMRC, and the alleged fraud.

While I cannot see how the FTT Decision’s account of the oral submissions can be challenged (no judge’s note of the FTT hearing having been obtained to suggest that the FTT Decision was incorrect on this point), as regards the written submissions there appears nothing on the face of those to suggest the appellant was only relying on the discovery of the FTT decisions. To that extent the misunderstanding of the appellant’s written case is an error of law which is at least arguable.

In my permission refusal I had queried the materiality of any alleged error here because the FTT had, in the appellant’s favour, gone on to consider the merits of the appellant’s explanation on personal circumstances in any event. In the light however of the FTT’s statement in the final paragraph at [42] that the appellant’s “only reason for bringing this appeal now is to benefit from other recent FTT decisions” (a finding which preceded its conclusion that it was not appropriate to give permission to appeal late) I can see that the error (particularly when considered with the ground below) might have made a difference to the outcome.

Permission is granted on Ground 4.

Under Ground 5, the appellant argues that when evaluating the delay the FTT did not look at the combination of his particular circumstances. He argues that a proper evaluation at stage two required the FTT to look at the cumulative picture, including the nature of his work (an oil and gas project worker who worked away from home in remote locations for long periods), his mental health, the alleged pressure from HMRC, and the question of when he first had reason to think he had a viable case following the other FTT decisions on similar cases becoming known.

The FTT relied (at [31]) on the lack of medical evidence as to him being able to “participate in the appeal process”. To the extent that meant the FTT did not consider there was medical evidence that he was unable to file an appeal that would not address the wider point that the personal and other circumstances meant he was unable to meaningfully engage with whether it was worthwhile filing an appeal.

The FTT referred to Mulvenna & Anor v Secretary of State for Communities and Local Government [2015] EHWC 394 (Admin) and Moor and Anor v HMRC [2022] UKFTT 411 (TC) at [94]) in essence for the proposition that publication of a new authority that prompted an out of time appeal was not, for reasons of good administration and finality, a good reason for appealing out of time. This approach assumes that litigants ought to have been in a position to take a view on the merits of their case sooner. That was why it was not a good reason to wait for others to show the way. That assumption could not, it may be argued, fairly apply to the appellant however given the personal and other upheaval he faced during the period of delay.

On the basis the error to the look at the appellant’s circumstances in combination is at least arguable I grant permission on Ground 5.

The appellant relied on the maxim that fraud “unravels all” as set out in the House of Lords’s discussion at [15] of HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6 , submitting that alleged fraud by his former agents was fundamental and should have been treated as materially affecting both the explanation for delay and the fairness of refusing a late appeal.

For the reasons set out previously in the UT permission refusal decision, the appellant’s reliance does not help in showing an error of law in the FTT Decision. This was not a case where HMRC was accused of fraud or indeed the fraud was proved. It was not explained how the fraud maxims, taken as legal principles, converted the late appeal discretion into an obligation to extend time. Nor was it explained how those maxims meant the appellant would necessarily succeed in showing how the underlying tax liability HMRC imposed on him was wrong. (To the extent the alleged fraud provides factual context for the authorisation issue, that is addressed under Ground 2). For present purposes, no arguable error of law arises from the FTT’s omission to take account of the fraud maxims. Permission to appeal this ground is refused.

The appellant relied on various FTT decisions involving EIS claims by an agent alleged to be fraudulent including Robson, Huntly v HMRC [2022] UKFTT 135 (TC) and Stoney v HMRC [2025] UKFTT 850 (TC), contending that his case was materially similar and that the FTT failed to give those decisions appropriate weight.

Except in so far as those decisions support the appellant’s case in respect of other grounds (such as authorisation or prejudice), there is no arguable error of law in the FTT’s treatment of such other FTT decisions. Those decisions are not binding. It was open to the FTT to conclude that they did not make the appellant’s merits overwhelmingly strong (Stoney it will be noted pre-dated the FTT Decision here so could not have been considered). As regards the evaluation of the appellant’s delay, it was open to the FTT to conclude, for reasons of finality (as discussed in Mulvenna and Moor), that becoming aware of a later decision is not in itself a good reason for waiting to file an appeal. The underlying facts relevant to the appellant’s case and which were relied on here, such as lack of authorisation, were within the appellant’s knowledge. (To the extent the appellant’s personal circumstances are relied on to explain why the appeal’s viability was not known sooner that is the subject of Ground 5 in relation to which permission has already been granted.)

Permission to appeal Ground 7 is refused.

The appellant argued that his self-assessment returns were void because they were unsigned or unauthorised, advancing arguments under the Bills of Exchange Act 1882 to the effect that liability requires a signed instrument. The question of authorisation is addressed in Ground 2, on which permission is granted. The separate arguments about signature and the Bills of Exchange Act do not disclose any error of law which is arguable. Mr Tweddle’s various submissions regarding the Commissioners being constituted as legal persons, the appellant’s consent by signature being required and that the Bill of Exchange Act 1882 provisions overrode assessment requirements set out in secondary legislation, do not raise points of law which are arguable. There is no legal requirement that a self-assessment return be signed in the sense relied, the Bills of Exchange Act does not govern the creation of tax liabilities under statute (which regime is set out in the primary legislation), and its provisions would not in any case apply for the reasons explained by Judge Zaman in Hosie (see [32] to [35).

Permission to appeal Ground 8 is refused.

In a letter sent shortly after the hearing before me the appellant argues that HMRC failed to provide the relevant self-assessments to the FTT, meaning the FTT decided the case without the core evidence on which the dispute depended. He contends that this omission rendered the FTT’s decision legally flawed, unfair, and effectively a “void act”, because the Tribunal reached a conclusion on a hypothetical basis, without the factual material needed to adjudicate whether the returns were authorised or valid.

These points do not raise any point of law which is arguable. The purpose of the hearing before the FTT was to decide whether permission should be given for the appellant to make an appeal despite it being late. It was not required to adjudicate on whether the returns were authorised or valid but, without entering into a detailed investigation, to consider the strength or weakness of the appellant’s case when balancing all the circumstances of the case. While a lack of evidence about the assessments might be potentially relevant to whether HMRC had provided evidence sufficient to contradict the appellant’s case on lack of authorisation (the subject of Ground 5 in relation to which permission has been granted) it could not of itself make the late appeal proceedings before the FTT or its decision a nullity. Permission to appeal Ground 9 is refused.

The appellant says the FTT misunderstood the chronology of separation and divorce, which he says began in December 2018, with separation around July 2019 and divorce proceedings in late 2021, which then concluded in May 2023. As explained in the UT refusal of permission decision, the FTT proceeded however in essence on the basis of the appellant’s account rather than on HMRC’s. In other words, to the extent there was any error in what HMRC had said about the timing then that was not something which the FTT had then relied on. Any error could not therefore be significant to the FTT’s conclusion.

Permission go appeal Ground 10 is refused.

The appellant argues that the FTT failed to recognise his vulnerability and litigant-in-person status. The FTT considered his difficulties, expressed sympathy in its decision and, on the materials before it, dealt with him appropriately at the hearing. There is nothing to suggest improper treatment, cross-examination or questioning that could amount to an error of law. By the appellant’s own account before me the FTT panel were patient in their handling of the hearing. To the extent there is overlap with Grounds 4 and 5 as regards consideration of the appellant’s personal difficulties then that is addressed above.

Permission to appeal Ground 11 is refused.

Permission to appeal is granted onGrounds 1- 5 above.

Permission to appeal on Grounds 6-11above is refused.

To the extent any grounds remain which are pursued from the appellant’s written application which have not been dealt with specifically above then they are refused for the reasons set out in the earlier UT permission refusal decision.

Where the Upper Tribunal has granted permission to appeal ( as I have done on the Grounds 1 to 5 as stated above) the application for permission to appeal would normally, unless the tribunal directs otherwise, stand as the appellant’s notice of appeal (Rule 23(1)(c) of the UT Rules).

In the UT permission refusal decision I had described how the appellant’s application of 22 August 2025 comprised 14 pages or so of narrative making a number of points, many of which overlapped or which repeated the same point, some being put at high level of generality (for instance that the refusal was unjust or violated equity).

I direct the grounds which stand (subject to the appellant’s confirmation below) as the appellant’s grounds in its notice of appeal are the grounds as I have expressed them above in this decision.

As the grounds as I have stated them are worded differently to the appellant’s application, and for the other reasons mentioned below, I consider it appropriate to give the appellant the opportunity to confirm within 28 days of the issue of this decision that he wishes to pursue some or all of the grounds that I have stated. (The time limit for HMRC to file a response (under Rule 24 of the Upper Tribunal Rules) will only start after the appellant provides such confirmation or the 28 day deadline expires).

The appellant should be aware of following points and is encouraged to seek legal advice.

The appellant is directed, within 28 days of the issue of this decision, to confirm to the Upper Tribunal, and to HMRC, whether he wishes to pursue the appeal on the basis that Grounds 1 to 5 as stated above will stand as the grounds in his notice of appeal (and if not all grounds are pursued, to identify which ones are).