The image below shows all the different ways in which someone might become involved in a tax dispute with HMRC and the Tribunals and courts involved:

The jurisdiction of the First-tier Tribunal and the Upper Tribunal covers both direct and indirect taxes.

Direct taxes include:

• Corporation tax
• Income tax
• Capital Gains Tax
• Inheritance Tax
• National Insurance Contributions
• Stamp taxes (Stamp Duty and Stamp Duty Land Tax)
• Income tax collected under PAYE
• Construction industry scheme (CIS)

Indirect taxes include:

• VAT
• Insurance Premium tax
• Landfill tax
• Climate Change levy
• Aggregates levy
• Excise duty

If HMRC decides you or your client is liable to tax, interest and penalties it is important to fully review the decision letter and to always carry out a strategic review of the merits of the taxpayer’s position.

Points to consider include:

• A review of the legal analysis / merits / whether there is any current case law which impacts on the taxpayer’s position
• A review of the factual position, in particular:
  
  • What facts does the taxpayer need to establish on appeal?
  • Does the taxpayer have all relevant original documents available to establish the relevant facts?
  • Does the taxpayer need to rely on witnesses of fact, and if so, can witness statements be obtained?
• How much will an appeal cost?

Whether you are an individual, corporate or professional adviser, Julian Hickey can comprehensively assist and guide you in undertaking a review of your tax position to evaluate the merits of any tax appeal to the First-tier Tribunal, Upper Tribunal and beyond.

Generally, for direct taxes and SDLT, it is possible to apply to HMRC for payment of tax to be deferred until the outcome of a First-tier Tribunal appeal. In most circumstances, you will need to demonstrate that the taxpayer has reasonable grounds for appealing. It is not possible to defer payment of tax if you or your client has received a valid accelerated payment notice (APN).

VAT appeals are subject to a “prepayment rule”, which means before a taxpayer’s appeal can be heard, the taxpayer must first pay the disputed VAT unless hardship can be established. Julian Hickey can advise on postponement applications and applications for hardship.

Please listen to Julian Hickey’s video which explains the First-tier Tribunal appeal system: Settings – FTT Appeals Webinar (vimeo.com)

The jurisdiction and powers of the First-tier Tribunal are provided in the First-tier Tribunal (Tax Chamber) Rules (in effect from 21 July 2020), a copy of which can be accessed here: SI/SR Template (publishing.service.gov.uk)

Forms and other guidance relevant to the First-tier Tribunal can be accessed here: Tax (First-tier Tribunal) forms – GOV.UK (www.gov.uk)

A notice of appeal and the associated documentation relied on for the purposes of a tax appeal are not freely available to the public. However, all hearings in the First-tier Tribunal are public proceedings in the interests of open justice (subject to specific exceptions listed below). A judgment of the First-tier Tribunal is available on the First-tier Tribunal website unless publication is restricted, and the decisions are available here: financeandtax.decisions.tribunals.gov.uk

The First-tier Tribunal may give a direction that a hearing, or part of it, is to be held in private if the Tribunal considers that restricting access to the hearing is justified:

(a) in the interests of public order or national security;

(b) in order to protect a person’s right to respect for their private and family life;

(c) in order to maintain the confidentiality of sensitive information;

(d) in order to avoid serious harm to the public interest; or

(e) because not to do so would prejudice the interests of justice.

As a specialist tax adviser and litigator, Julian Hickey is well-positioned to deliver expert technical and practical knowledge in dealing with all stages of a tax appeal. This can potentially make a significant difference to the level of the assessed tax liability, penalties and interest originally imposed.

Julian can assist you or your professional adviser at every step of the appeal process by:

• Drafting any Notice and Grounds of Appeal
• Reviewing and advising on HMRC’s Statement of Case
• Advising on and drafting any Appellant’s Statement of Case
• Advising on the general conduct of the appeal, including advising on any First-tier Tribunal directions issued and interlocutory matters (e.g. applying for a preliminary issue hearing)
• Advising on evidence and the issues to be covered in witness statements
• Advising on specific disclosure applications relating to the identification of evidence
• Advising on the scope and application of legal professional advice privilege, and litigation privilege
• Advising and drafting skeleton arguments
• Representing your case throughout the entirety of the appeal hearing
• Advising on assessments and penalties relating to corporation tax, income tax, capital gains tax, VAT, NICs / PAYE, StampDuty, Stamp Duty Land Tax, Customs duties
• Applying for permission to make a late appeal, not made within 30 days of HMRC’s decision

With considerable experience of advising and representing taxpayers (and HMRC) before the First-tier Tribunal, Upper Tribunal and beyond, Julian Hickey has acted in a wide range of substantive and procedural tax issues:

• Income Tax – Procedure – HMRC’s application to withdraw Statement of Agreed Issues – Appellant’s application for directions including for further and better particulars – Kevin McCabe v HMRC [2020] UKFTT 428 (TC) https://www.bailii.org/uk/cases/UKUT/TCC/2020/266.html
• Corporation Tax – computation of profits – deductions for replacement of tools – implements, utensils, articles – s 68 CTA 2009 and s 74(1)(d) TA88; mistake claim -para 51A Sch 18 FA 98 whether generally prevailing practice: Turners (Soham) Ltd v Revenue & Customs (INCOME TAX/CORPORATION TAX: Exemptions and reliefs) [2019] UKFTT 391 (TC) (17 June 2019) (bailii.org)
• Corporation Tax – whether the appellant was resident outside the UK – held central control and management was exercised in the UK: Development Securities (NO 9) Ltd & Ors v Revenue and Customs (INCOME TAX/CORPORATION TAX: Other) [2017] UKFTT 565 (TC) (14 July 2017) (bailii.org)
• Procedure – application for own appeals to be struck out on basis that no reasonable prospect of success and/or abuse of process – application for Tribunal to exercise discretion under Rule 5 to bring proceedings to an end: Albert House Property Finance PCC LTD (in liquidation) & Vale Property Finance PCC Ltd (in liquidation) v Revenue & Customs (PROCEDURE: SDLT – earlier interlocutory decision) [2020] UKFTT 274 (TC) (26 June 2020) (bailii.org)
• Procedure – withdrawal of appeals – HMRC informing Tribunal of objection – Tribunal informing Appellants – no direct notification – whether dispute treated as settled under Sch 10 para 37 – held, no – appeals remain to be determined by Tribunal”: Albert House Property Finance PCC Ltd & Anor v Revenue & Customs (SDLT – withdrawal of appeals) [2019] UKFTT 732 (TC) (03 December 2019) (bailii.org)
• Discovery Assessments – whether discovery – whether subsale relief applied – if so, whether caught by retrospective provision in s 45(3A) of FA 2003 – if not, whether within the anti-avoidance provision in s 75A: Newton & Anor v Revenue & Customs (SDLT – whether discovery – whether subsale relief applied) [2019] UKFTT 688 (TC) (12 November 2019) (bailii.org)
• Value Added Tax (VAT) – PROCEDURE – HMRC seeking to rely on documents confidential to one appeal in joined appeal concerning that appellant and another appellant – first appellant objecting – decision based on relevance of material – application allowed in part”: Mark Mitchell & Paul Bell v Revenue & Customs (PROCEDURE: HMRC seeking to rely on documents confidential) [2020] UKFTT 102 (TC) (30 October 2019) (bailii.org)
• Stamp Duty Land Tax (SDLT) – whether the chargeable consideration consists of an annuity – whether section 52 Finance Act 2003 applies – whether the Ramsay principle or section 75A Finance Act 2007 apply – whether the discovery assessment and penalty notices are valid Hannah & Anor v Revenue & Customs (STAMP DUTY: Reserve tax) [2019] UKFTT 342 (TC) (30 May 2019) (bailii.org)
• Value Added Tax (VAT) – food – excepted items – confectionary – overriding item – cakes – healthy brownie – sufficient characteristics to be classified as a cake – yes – Pulsin’ Ltd v Revenue & Customs (VAT – ZERO-RATING: Food, etc) [2018] UKFTT 775 (TC) (28 December 2018) (bailii.org)
• Value Added Tax (VAT) – whether branches of the appellant are persons independent from the appellant for VAT purposes – yes – whether sums received by the appellant and rebated to branches are received as agent or are consideration for supplies by the appellant – held consideration for supplies The National Federation of Occupational Pensioners v Revenue and Customs (VAT – OTHER: Vat – other) [2018] UKFTT 26 (TC) (20 January 2018) (bailii.org)