BW Interiors Limited v The Commissioners for HMRC

This is an application by the Respondents (“HMRC”) to strike out the appeal of B W Interiors Limited (“the Appellant”) under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) 2009 (“the Rules”) on the basis that this Tribunal does not have jurisdiction to hear the appeal.

In summary, HMRC contend that the Appellant did not give written notice of appeal to HMRC as required by section 49D Taxes Management Act 1970 (“TMA”) but instead gave notice of appeal only to the Tribunal. HMRC argue that as the statutory requirements for notifying an appeal to the Tribunal have not been satisfied as the Appellant has failed to follow the procedure set out in the relevant legislation, the appeal must be struck out.

Under Rule 8 of the FTT rules, subsection (2) reads as follows:

Section 31 of the Taxes Management Act 1970 (TMA 1970) provides for rights of appeal and includes the following relevant rights:

 Section 31A(1) of TMA 1970, reads as follows:

The remainder of section 31A of TMA 1970 (in so far as relevant) reads:

Section 49D of the Taxes Management Act 1970 provides:

As can be seen from the above, by virtue of section 49D(1) TMA, a person can only notify an appeal to the Tribunal if a notice of appeal has been given to HMRC. The appeal must be in writing (section 31 TMA) and the notice of appeal must be given to the relevant officer of the Board i.e. the officer who issued the Decision (section 31A TMA). For these purposes, the “specified date” is the date on which the closure notice or notice of assessment was issued.

HMRC issued a ‘Pre-closure explanation’ letter on 29 April 2025. The letter stated:

It does not appear in dispute that the Appellant sought clarity from HMRC on 2 May 2025 that it could appeal directly to the Tribunal, as the letter appeared to contradict the guidance on Form T240.

HMRC responded on 7 May 2025 confirming its statement in the letter of 29 April 2025.

It appears there was a complaint by the Appellant relating to the handling of the Appellant’s 2021 R&D claim. An extract from HMRC’s response to the complaint dated 21 July 2025 stated:

The full letter was not included in the material available to me.

The Appellant appealed to the Tribunal against a Closure Notice dated 9 July 2025 for SME R&D Tax Relief on 6 August 2025.

HMRC issued its View of the Matter letter on 21 October 2025.

HMRC contend that the Tribunal has no jurisdiction to determine the appeal, as no notice of appeal was given to HMRC in the first instance, as per the legislation.

Section 31A states that a notice of appeal must be given in writing, within 30 days after the specified date and to the relevant officer of the Board. The specified date is the date on which the closure notice was issued.

On 6 May 2025, the Appellant contacted HMRC to query whether an appeal could be sent to the Tribunal without first notifying HMRC.

On 7 May 2025, HMRC issued an email in response referring to the closure notice that was due to be issued and the action the Appellant should take if it disagreed with these decisions.

HMRC acknowledge that incorrect information “may” have been given to the Appellant regarding appeal rights to the Tribunal and “regrets any confusion caused”. However, it maintains that the Tribunal does not have jurisdiction to adjudicate on public law matters such as legitimate expectation or procedural unfairness arising from incorrect advice which would fall within the jurisdiction of the High Court via judicial review.

HMRC submit the statutory requirements for initiating an appeal are not discretionary and cannot be waived or overridden by incorrect advice.

HMRC has confirmed that if an appeal were made directly to HMRC, the appeal would be accepted as if made in time.

The Appellant submits that it relied upon advice from HMRC which was confirmed by HMRC when clarification was sought.

To allow the strike out application would unnecessarily punish the Appellant for HMRCs error and would have the unnecessary outcome of delaying the appeal, which HMRC have indicated they do not object to.

HMRC issued its View of the Matter letter on 21 October 2025 which the Appellant submits constitutes or serves the function of an appeal response.

HMRC accept that incorrect advice was given which may, in exceptional cases, give rise to legitimate expectation. However, HMRC provide no reasonings as to why legitimate expectation should not apply. HMRC’s reliance on Hok [2012] UKUT 363, and Sewell [2024] UKFTT 00773 (TC) do not apply as both cases concerned the reliance on HMRC statements that impacted the tax liability. In this case, the Appellant is not relying on legitimate expectation to succeed in their appeal, but to avoid an unnecessary delay in having their case heard.

Whilst the Appellant acknowledges that HMRC had not issued an appeal before their appeal to the Tribunal, it asks the Tribunal to consider:

This decision relates only to the application made by HMRC that the Appellant’s appeal should be struck out on the grounds that this Tribunal has no jurisdiction to hear it. The basis for that application is that no appeal has been notified to HMRC as required by section 49D TMA.

The application falls to be determined by reference to the requirements of section 31A and 49D of TMA 1970, in terms of notifying HMRC, which is a question of law.

In Flash Film Transport Ltd v HMRC 

Section 31A is headed "Appeals: notice of appeal" and sets out the requirements for making an appeal. In relation to appeals made "under section 31" it provides that notice of an appeal under section 31 must be given in writing, within 30 days after the issue of the closure notice or making of the assessment and to the relevant officer of the board. In my view, for the reasons set out below, section 31A cannot be met by notifying an appeal to the Tribunal without first having notified HMRC.

Section 49A of TMA 1970 provides as follows:

By the use of the past tense, and giving the words of the statute their ordinary meaning, it is clear that the options available to an appellant found in section 49A(2) namely, to request a review, to wait for an offer of a review to HMRC or to notify the appeal to the tribunal, only arise where an appeal has already been notified to HMRC.

I therefore agree with the comments of Judge Redston in Flash Film and find that the legislation provides that an appeal must be made to HMRC before an appeal can be notified to the Tribunal.

The Appellant did not notify its appeal in writing to HMRC as required by section 49D(1) prior to notifying the Tribunal and in those circumstances the Tribunal has no jurisdiction and HMRC’s application must be allowed.  

It is regrettable that HMRC provided incorrect advice and subsequently confirmed that advice to the Appellant. However, this Tribunal has no jurisdiction to consider the conduct of HMRC or the issue of legitimate expectation, which are matters more appropriately pursued via HMRC’s complaints procedure or by way of judicial review if the Appellant chooses to do so.

I noted the Appellant’s representations in relation to HMRC’s response to the Appellant’s complaint dated 21 July 2025 which indicated that the enquiry had been reviewed and “neither party have found evidence of bias, and nor do they disagree with the final decision”. As set out above, the letter was not provided, and on the material before me, I cannot be satisfied that the extract can be construed as pertaining to any matter beyond the scope of the complaint such that it could constitute a notice of appeal to HMRC.

I note that HMRC has already issued its view of the matter and its indication that any appeal notified to it will be accepted should minimise any further delay in proceedings. However, this application must be decided by reference to the relevant governing provisions, and I am satisfied that the legislation provides that an appeal must be made to HMRC before an appeal can be notified to the Tribunal and section 31A cannot be met by notifying an appeal to the Tribunal alone.

The application is granted and the appeal is struck out.

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.