Tax Tribunals

    Contents

  1. General approach
  2. Making a new appeal to HMRC
  3. Making a new appeal to the First-tier Tribunal
  4. Complex and Standard appeals
  5. All other appeals
  6. Hearing of appeals
  7. Appealing a Tribunal decision
  8. The Upper Tribunal
  9. Judicial review

Appeals and applications to the First-tier Tribunal and Upper Tribunal are both significantly affected by the coronavirus (COVID-19) pandemic. This guidance summarises the situation as at 10 July 2020. However, the position is not yet stable. The Ministry of Justice is providing regular updates and you are advised to check the Judiciary website for the most up-to-date position.

The Ministry of Justice page currently includes ‘pilot’ practice directions, announcements and guidance. These practice directions are described as ‘pilot’ because they have been introduced to deal with the problems caused to the Tribunals by the coronavirus lockdown. They are expressed to last for six months, but may be amended or revoked at any time; they may also be extended.

The position before the pandemic is set out in the Appealing an HMRC decision — outline guidance note and the other guidance notes in that subtopic, which provide more details of many of the steps and procedures relevant to an appeal to the Tribunals. However, the information in those guidance notes should be read in the light of, and as amended by, the commentary below.

This guidance deals with appeals to the First-tier Tribunal unless specific reference is made to the Upper Tribunal or to both Tribunals. It only provides a summary, and you may need to take further advice in relation to any particular appeal position. Also, If the appeal is to the Scottish First-tier Tribunal, the procedure may not be the same as that set out here. You are advised to take specialist advice.

General approach

There are five general points that you should bear in mind:

  1. the starting point in resolving the difficulties caused by coronavirus is the overriding objective. This is that the Tribunals must deal with cases ‘fairly and justly’, see SI 2009/273, Rule 2, and the SI 2008/2698, Rule 2. If you are asking for extra time, objecting to a proposal or asking for something different (ie making some sort of ‘application’ to the Tribunal), you may wish to frame any applications in the context of that objective. You may also want to refer to the Senior President’s statement that the Tribunals will take into account the impact of coronavirus when considering any application for further time
  2. the Tribunal administration and the judiciary are likely to take more time than normal to deal with any appeal because the number of administrative staff is reduced, see the First-tier Tribunal Tax Chamber President’s statement
  3. wherever possible, you should communicate with the Tribunals by email, as almost all the administrative staff will be working remotely, see the First-tier Tribunal Tax Chamber President’s statement
  4. all correspondence with the Tribunal about the appeal must be copied to the HMRC Officer dealing with the case. HMRC must likewise copy all correspondence to the adviser / taxpayer. This is part of the Tribunal’s normal requirements and will be even more important during the pandemic. It ensures that all parties and the Tribunal have the relevant information in order to deal appropriately with the appeal
  5. when sending documents to the Tribunal or HMRC by email, it is important to check the size of the files, as an email with attachments exceeding 36mb in total is likely to be rejected by the Tribunal’s firewall, and it is understood that HMRC may reject files if they are above 25mb in size

You may find the general summary guidance for users of the First-tier Tribunal and Upper Tribunal and the First-tier Tribunal frequently asked questions useful. The First-tier Tribunal Tax Chamber President has also written an article explaining the position in ‘Let justice be done’ in Taxation, 25 June 2020.

Making a new appeal to HMRC

As explained in the Appealing an HMRC decision — outline guidance note, you must first check whether the HMRC decision is appealable. Direct tax appeals must be made first to HMRC. With indirect tax decisions, a person can either accept the offer of an HMRC review, or appeal straight to the Tribunal. In either case, there is a strict 30-day time limit. However, HMRC can accept a late appeal if there is a reasonable excuse.
TMA 1970, s 49(3), (6); VATA 1994, ss 83E(2)(b), 83G(6)

HMRC has given the following guidance:

‘If you or your business have been affected by coronavirus (COVID-19), HMRC will give you an extra three months to appeal any decision dated February 2020 or later. Send your appeal as soon as you can, and explain the delay is because of coronavirus.’

Note that this only applies to appeals made to HMRC. It does not apply where a person decides to appeal an indirect tax decision directly to the Tribunal (see ‘Making a new appeal to the First-tier Tribunal’ below).

There is no generic email address to which a new appeal can be made to HMRC. If you are unable to obtain an appropriate email address, perhaps from an HMRC Officer, it may not be possible to make an electronic appeal to HMRC and any appeal may need to be made by post. You may find it difficult to notify the appeal to HMRC within the time limit (eg the decision letter was sent to your / the taxpayer’s work premises, which are closed, or you / the taxpayer are self-isolating).

If you appeal to HMRC after the extra three months, or cannot rely on that extended period because the reason for the delay is not related to coronavirus, HMRC may still accept that you have a reasonable excuse for making a late appeal.

If HMRC does not accept that you have a reasonable excuse, you will need to apply to the Tribunal for permission to make a late appeal. For an explanation of how to do this, see the Appealing an HMRC decision — outline guidance note. As noted above, the Senior President has already said that the Tribunals will take into account the impact of coronavirus when considering any application for further time, and it is thus likely that a delay caused by coronavirus-related matters will result in the application being allowed, but you will also need to explain the extent of the delay and the reasons why it was more than the three months allowed by HMRC. In making its decision, the Tribunal will consider all relevant circumstances including the reasons for the delay, see the Appealing an HMRC decision — outline guidance note.

Making a new appeal to the First-tier Tribunal

There is general guidance on whether to appeal to the Tribunal and how to do this in the Should I appeal to the Tribunal? and Preparing for the appeal to the Tribunal guidance notes.

You should ensure that the appeal is made using the online form on the GOV.UK website, rather than downloading the appeal form and sending it by post. If it is not possible to use the online form, the paper form can be scanned and submitted to the Tribunal via email (taxappeals@justice.gov.uk). Paper communication with the Tribunal is to be avoided during the pandemic, as administrative staff will for the most part be working remotely, see the First-tier Tribunal Tax Chamber President’s statement.

Any emails sent to the Tribunal should receive an automatic acknowledgement. If you do not receive an acknowledgement, it is suggested that you call or email the Tribunal Clerks to check that the email has not been blocked by the firewall or treated as junk mail. The email address is taxappeals@justice.gov.uk. You should put ‘new appeal’ and the appellant’s name in the header box for the email.

Time limit for making the appeal

There is a 30-day time limit for notifying an appeal to the Tribunal after HMRC has carried out a statutory review. In VAT cases, there is also a 30-day time limit for appealing to the Tribunal if the offer of an HMRC review is refused. There is more about these time limits in the HMRC review of a decision guidance note, which also notes that an exception applies in direct tax cases where there has been no offer or request for a review.
TMA 1970, ss 49D, 49G; VATA 1994, s 83G

The Tribunal has emphasised that the 30-day deadline still applies, and that it was not covered by the ‘general stay’ or the ‘further general stay’ referred to in ‘Complex and Standard appeals’ below. Those stays applied to ‘proceedings’ before the Tribunal. Until you have made the appeal, there are no proceedings, so the stays were not relevant.

If you are late because of the impact of coronavirus, the Tribunal may give permission for the appeal to be made / notified late. Note that HMRC has said that it will not object to a late notification as long as:

  • you are notifying an appeal against a review decision made by HMRC on or after February 2020, and
  • you ask within three months of the normal deadline

HMRC guidance on appeal against a tax decision; HMRC guidance on appeal against a penalty

The decision as to whether to allow the appeal to be made / notified late is one for the Tribunal to make, not HMRC. However, the Tribunal will consider all relevant circumstances, and the Tribunal President has said that a Tribunal would be very likely to allow a late appeal if the delay is due to coronavirus and HMRC does not object. For more about late appeals, see the Appealing an HMRC decision — outline guidance note.
Pilot Practice Direction on contingency arrangements; First-tier Tribunal frequently asked questions, page 3

Categorisation of the appeal

Once the Tribunal has received the appeal, it will be classified into one of four categories: Default Paper, Basic, Standard and Complex. Default Paper cases are so called because they are automatically classified as paper cases without the parties making a request (so by default), and the ‘paper’ categorisation means there is no hearing; instead, the papers are given to a judge who decides the outcome and writes the decision. The process for a default paper case is at SI 2009/273, Rule 26, and it is discussed in the Preparing for the appeal to the Tribunal guidance note.

In March 2020, the President of the First-tier Tribunal issued a practice statement that will initially apply for six months, although it could be extended, amended or revoked depending on the coronavirus position. Under that practice statement, the following cases will automatically be allocated to the ‘Default Paper’ category:

  • appeals against penalties of no more than £20,000 for late payment of taxes or duties, and
  • appeals against penalties of no more than £20,000 for late filing of returns, statements, accounts or documents and late submission of notices of being chargeable to tax

The threshold for default paper categorisation was previously £2,000. The benefit of the new higher threshold is that more cases can be decided without waiting for the end of the pandemic: it is quicker and easier to organise and decide a default paper case than an appeal which requires a hearing.

If the taxpayer’s case has been allocated as default paper, you should liaise with HMRC to ensure that the Tribunal is provided with all relevant documents in an electronic format; where possible, that format is to be editable. This is presumably to make it easier for the judge to draft the decision in an efficient manner by citing evidence or arguments without having to retype the words.
Updated guidance on the administration and conduct of proceedings

When sending documents by email, it is important to check the size of the files, as an email with attachments exceeding 36mb in total (in the case of the Tribunal) or 25mb in total (in the case of HMRC) is likely to be rejected by the firewall. Any emails sent to the Tribunal should receive an automatic acknowledgement. If this is not received, you should call or email the Tribunal Clerks to check that the email has not been blocked by the firewall or treated as junk mail. The email address is taxappeals@justice.gov.uk. You should put ‘new appeal’ and the appellant’s name in the header box for the email.

Remember to think carefully about what factors are relevant to the taxpayer’s position and provide all the relevant evidence and arguments. Often in penalty cases, new facts and arguments are put forward at the hearing. In paper cases, there is no chance to do this. If all relevant material has not been provided with the grounds of appeal, make sure it is sent to the Tribunal by way of reply to HMRC’s Statement of Case.
SI 2009/273, Rule 26

A party who does not agree that the appeal should be decided as a default paper case can object by writing to the Tribunal via an email sent to taxappeals@justice.gov.uk. If this happens, the Tribunal Rules say that ‘the Tribunal must hold a hearing before determining the case’. In other words, the default paper categorisation will then be replaced by another categorisation (usually basic).
SI 2009/273, Rule 26(7)

An amendment to the Tribunal Rules, effective from 10 April 2020, provides that even if a party objects to the case being decided on the papers, the Tribunal may nevertheless decide that it should be decided in that way. However, the Tribunal can only take that step if all of the following conditions are satisfied:

  • the matter is urgent
  • it is not reasonably practicable for there to be a hearing (including one conducted wholly or partly by telephone or by video, see further below)
  • it is in the interests of justice to make that direction

SI 2020/416, reg 7(2) (inserts SI 2009/273, Rule 5A)

This amendment to the Tribunal Rules is expressed to expire at the same time as the Coronavirus Act 2020, so on 24 March 2022, unless that date is either brought forward or extended.
SI 2020/416, reg 1(2); Coronavirus Act 2020, ss 89, 90

Complex and Standard appeals

If the taxpayer appealed to the Tribunal before 24 March 2020 and was told that the case had been classified as Complex or Standard, the normal position is that the appeal will have been stayed until 30 June 2020. This is because the President of the First-tier Tribunal issued a ‘general stay’ on 24 March 2020 that was extended on 21 April 2020 by a ‘further general stay’ until 30 June 2020. No further extension was then directed. You are advised to note that:

  • only appeals received by the Tribunal before 24 March 2020 and categorised as Complex or Standard after that date but before 21 April 2020 were covered by the general / further stay. Appeals received by the Tribunal after 24 March 2020 were not covered by the stay even if they were subsequently categorised as Complex or Standard, and appeals received before 24 March 2020 but categorised as Complex or Standard after 20 April 2020 were also not within the further stay. So be very careful to check which side of the line your case falls on
  • if the parties in a Complex or Standard case received directions (instructions from the Tribunal as to how the case is to proceed) dated before 24 March 2020, the time limits in those directions were extended by 98 days (ie the initial 28-day extension plus a further 70 days). However, directions issued after 24 March 2020 were not covered by the general / further stay ― see ‘All other appeals’ below
  • similarly, if HMRC were directed before 24 March 2020 to provide a Statement of Case (a document setting out the facts, the law and HMRC’s arguments) under SI 2009/273, Rule 25 in a Complex or Standard appeal, the time limit was also automatically extended by 98 days. But if the direction was issued after 24 March 2020, the stay did not apply

If your case was one of those affected by the general / further stay, you were unlikely to hear anything about the appeal during that time, and it will not have moved forward.

However, in any particular case, the Tribunal may have decided that the appeal could be moved forward, and if so will have issued specific directions.

A party who objected to the case being stayed, perhaps because it was very urgent, could have applied for the stay to be lifted. That might have been the position for example where HMRC was threatening the taxpayer with bankruptcy.

All other appeals

The Tribunal President issued a ‘general stay’ on 24 March 2020, which stayed all appeals received after that date until 21 April 2020. However, that stay was not extended. Instead, the President issued a ‘further stay’ affecting only certain Standard and Complex appeals ― see ‘Complex and Standard appeals’ above.

The stay on all appeals other than those covered by the further stay was thus lifted on 21 April 2020. As a result:

  • if the parties have already received directions (instructions from the Tribunal as to how the case is to proceed), the time limits in those directions were suspended between 24 March 2020 and 21 April 2020 but then began to run again. Be very careful not to miss the new time limits. You will need to go through the directions and replace all relevant dates by ones which take into account the general stay
  • if HMRC had been directed before 24 March 2020 to provide a Statement of Case (a document setting out the facts, the law and HMRC’s arguments) under SI 2009/273, Rule 25, the time limit to provide it was extended by the general stay, but has now begun to run again
  • in any particular case, the Tribunal may have decided that the appeal could be moved forward despite the general stay, and if so will have issued specific directions. If that is the position, you need to follow the specific directions

Hearing of appeals

Until further notice, there will be no hearings at which people are physically present, unless the President gives permission (see ‘Physical hearing before the end of the pandemic’ below). If the taxpayer’s hearing was listed to take place before 31 August 2020, you are likely to have already been informed that it has been cancelled.

The Tribunal is considering how to hear appeals. There are the following possibilities:

  • the case being heard (and disposed of) on the papers
  • the case being heard by video or audio hearing. Relevant considerations include objection to such a hearing, a party failing to attend such a video or audio hearing and the implications for privacy and confidentiality of such hearings being recorded
  • the case being heard at a physical hearing, perhaps after the pandemic is over or, in exceptional circumstances, during the pandemic

All of these are explained further below.

The judiciary is making good progress in hearing appeals by phone and video. For a daily breakdown of the number of cases heard remotely in all courts and tribunals in England and Wales, see the GOV.UK website.

The Tribunal is also publishing a list of cases which are to be heard in the following week.

Paper hearing

The Tribunal Rules allow cases other than those categorised as Default Paper to be dealt with on the papers, without an oral hearing, if the parties consent. The Tribunal may ask you if you agree to the appeal being dealt with in this way, see the Statement of Conduct of Business in the First-tier Tribunal.
SI 2009/273, Rule 29

If you agree, you will be issued with specific directions to move the case forward so the appeal can be dealt with on the papers by a judge. If the First-tier Tribunal directs the provision of a bundle, this is to be provided in PDF format and made up in accordance with the detailed guidance issued by the President of the First-tier Tribunal.

The First-tier Tribunal President's guidance on PDF bundles includes information about contents, indexing, numbering, bookmarking, hyperlinking and searchability. It also explains what to do if a party wishes to add new documents to the bundle after it has been filed with the Tribunal. The guidance must be followed unless:

  • the Tribunal has given different directions in relation to your case, or
  • compliance with the guidance is impossible

If the appellant is responsible for the provision of the bundles, and compliance with the guidance is impossible, the Tribunal must be informed without delay, together with suggestions for overcoming the problem.

Remember to think carefully about what factors are relevant to the taxpayer’s position and provide all the relevant evidence and arguments in good time. It is likely to be too late to do so after the judgment has been issued.

When sending documents (including a PDF bundle) by email, it is important to check the size of the files, as an email with attachments exceeding 36mb in total (in the case of the Tribunal) or 25mb in total (in the case of HMRC) is likely to be rejected by the firewall. Any emails sent to the Tribunal should receive an automatic acknowledgement. If this is not received, you should call or email the Tribunal Clerks to check that the email has not been blocked by the firewall or treated as junk mail. The email address is taxappeals@justice.gov.uk. You should put ‘new appeal’ and the appellant’s name in the header box for the email.

If you disagree with the case being decided on the papers, consider whether the case is suitable for a phone or video hearing, see below.

Note that even if you disagree, the Tribunal may nevertheless decide to go ahead in any event if all of the following conditions are satisfied:

  • the matter is urgent
  • it is not reasonably practicable for there to be a hearing (including one conducted wholly or partly by telephone or by video, see further below)
  • it is in the interests of justice to make that direction

SI 2020/416, reg 7(2) (inserts SI 2009/273, Rule 5A)

This is a new rule which applies only for as long as the Coronavirus Act 2020 is in force. It is expected to expire on 24 March 2022, unless that date is either brought forward or extended.
SI 2020/416, reg 1(2); Coronavirus Act 2020, ss 89, 90

Phone / video hearing — general

The Tribunal will contact you if it considers the case is suitable for a phone or video hearing.

If a case is listed for a phone / video hearing, the word ‘hearing’ in the Tribunal Rules applies to that hearing.
Pilot Practice Direction on contingency arrangements at [7]

Phone hearings are likely to be conducted using BT-MeetMe, and so should be simple for taxpayers and their advisers: no particular special requirements or technologies are required. It will be possible for a number of different people to be on the call, including witnesses.
First-tier Tribunal frequently asked questions, page 3

Video hearings are likely to be conducted using the Tribunal’s existing video-hearing technology, known as the Tax Video Platform (TVP), but this can currently only be used if there are no more than eight participants. It is however expected that this will be increased to 23 participants by the end of June 2020.
First-tier Tribunal frequently asked questions, page 3

If the TVP cannot accommodate the hearing, the Tribunal is likely to use the Kinly Cloud Video Platform (CVP). Skype for Business may also be used. You will be asked if you, the taxpayer and any witnesses can engage with the relevant platform. The Tribunal will issue directions as to the type of video platform to be used, taking into account the views of the parties and the Tribunal resources.
First-tier Tribunal frequently asked questions, page 3

You will need to contact all those who want to attend the hearing on behalf of your client, and ensure that they have access to the relevant technology (ie computer with internet access, webcam and microphone) and are sufficiently competent so that they can use it for the hearing. PDF bundles are normally required, and thus two screens will be needed, one to see the bundle and one to participate in the hearing. The second screen can be a tablet or similar. It may be necessary for participants to download applications in advance of the hearing to support the video hearing.
HMCTS telephone and video hearings during coronavirus outbreak; First-tier Tribunal frequently asked questions, page 3

The hearing bundle is to be provided in PDF format and made up in accordance with the detailed guidance issued by the President of the First-tier Tribunal. This includes information about contents, indexing, numbering, bookmarking, hyperlinking and searchability. It also explains what to do if a party wishes to add new documents to the bundle after it has been filed with the Tribunal.  It must be followed unless:

  • the Tribunal has given different directions in relation to your case, or
  • compliance with the guidance is impossible

If you (rather than HMRC) are responsible for the provision of the bundles, and compliance with the guidance is impossible, the Tribunal must be informed without delay, together with suggestions for overcoming the problem.

You should expect a remote hearing to take up to 50% longer than a face-to-face hearing. This is because frequent breaks are necessary and there may be technical difficulties during the hearing (such as a dropped connection).
First-tier Tribunal frequently asked questions, page 4

Third parties, including journalists, may ask to attend the hearing by joining the audio or video call, in the same way as they could have attended an oral hearing in person. The relevant Practice Direction says that:

‘Where a media representative is able to access proceedings remotely while those proceedings are taking place, the proceedings will constitute a public hearing for the purposes of the relevant Chamber’s procedure rules.’

Pilot Practice Direction on video / audio hearings at [5]

Third party access may not be possible where it means the number of participants will exceed the maximum for the video hearing technology that has been directed for that hearing. In that situation, the hearing judge may give a direction that the hearing is in private.
First-tier Tribunal frequently asked questions, page 4

The Tribunal is also publishing a list of cases which are to be heard in the following week.

For practical details of how to join a phone or video hearing, see the guidance on the GOV.UK website. Participants will need a quiet space where they will not be disturbed during the hearing.

Phone / video hearing — failure to attend

If the taxpayer is unable to attend the listed video / audio hearing, an application to adjourn must be made, with reasons. This can be simply via an email to taxappeals@justice.gov.uk, but you will need to explain why you / the taxpayer cannot attend, and attach any relevant evidence. Be sure to put your Tribunal reference number and the date of the hearing in the header box of the email, and, if the hearing is within the next few days, put URGENT in the header box as well.

If a party fails to attend a phone / video hearing without making an application for it to be adjourned, wins the appeal and then applies for the decision to be set aside on the basis of non-attendance, the Tribunal is unlikely to allow that application.
SI 2009/273, Rule 38(2)(d); Pilot Practice Direction on contingency arrangements at [9]

Thus where, for example, the appellant wins on one ground but considers that another ground should also have been successful, it is unlikely that the decision will be set aside.

There is no similar adverse presumption if a party:

  • fails to apply for an adjournment
  • fails to attend
  • loses the appeal, and
  • applies for the decision to be set aside on the basis of non-attendance

Nevertheless, you will need to show that it is in the interests of justice to set aside the decision, despite the failure to attend and the failure to apply for an adjournment. For an example of the Tribunal considering that Rule, see Rashidi.
SI 2009/273, Rule 38(2)(d); Rashidi v HMRC [2016] UKFTT 357 (TC)

Phone / video hearing — recording

The normal position in the Tribunal is that hearings must be held in public, with certain very limited exceptions, such as to protect national security. These exceptions are explained in the general commentary on confidentiality and privacy in the Should I appeal to the Tribunal? guidance note.
SI 2009/273, Rule 32(1)

An amendment to the Tribunal Rules, effective from 10 April 2020, allows a hearing to be in private if all of the following conditions are met:

  • the hearing is to be by telephone or video
  • it is not possible for a media representative to listen / watch the hearing at the time it is taking place, and
  • it is in the interests of justice for the hearing to be in private

SI 2020/416, reg 7(3) (inserts SI 2009/273, Rule 32(2A))

This amendment to the Tribunal Rules is expressed to expire at the same time as the Coronavirus Act 2020, so on 24 March 2022, unless that date is either brought forward or extended.
SI 2020/416, reg 1(2); Coronavirus Act 2020, ss 89, 90

To facilitate the continuation of the normal position that hearings are in public, the Coronavirus Act 2020 provides that the Tribunals may direct that a hearing which has been listed to be heard in private under the above amendment to the Rules can also be broadcast, or be recorded.
SI 2009/273, Rule 31; Coronavirus Act 2020, s 55, Sch 25; TCEA 2007, ss 29ZA-29ZD

There is no current expectation that First-tier Tribunal hearings will be broadcast. However, they may be recorded, and this must happen unless it is not practicable. This is the case even if a media representative was able to access the proceedings remotely while they were taking place.
SI 2020/416, reg 7(4) (inserts SI 2009/273, Rule 32A); Pilot Practice Direction on video / audio hearings

The only reason why a phone / video hearing will not be recorded is that it is not practicable to do so. The current position is that audio hearings and video hearings using TVP will be recorded, but that this is not yet possible using CVP.
SI 2020/416, reg 7(4) (inserts SI 2009/273, Rule 32A); Pilot Practice Direction on video / audio hearings; First-tier Tribunal frequently asked questions, page 4

Where the First-tier Tribunal has directed that the hearing be recorded, any person can apply to access that recording, and if the application is granted, the First-tier Tribunal will direct how the recording is to be accessed. From 21 July 2020, the First-tier Tribunal Rules have been amended to that effect. Previously, guidance stated that with the consent of the First-tier Tribunal, a recording could be accessed in a Tribunal building. The new rule is wider and more appropriate given the restrictions imposed by the pandemic.
SI 2020/651, regs 1, 7(3) (inserts SI 2009/273, Rule 32A(4)); HMCTS telephone and video hearings during coronavirus outbreak; Pilot Practice Direction on video / audio hearings; First-tier Tribunal frequently asked questions, page 4

It is also possible for any person to apply for a transcript of the hearing, on payment of a fee.
First-tier Tribunal frequently asked questions, page 4

The fact that the recording can be made available to any person after the hearing may have implications for privacy and confidentiality. In the past, most hearings were not attended by anyone other than the parties, although they were open to the public, and they were also not recorded, so it was not possible to apply to the Tribunal for a transcript. Now, any person can listen to a recording of the hearing after the event and obtain a transcript.

The Coronavirus Act 2020 also sets out criminal penalties to be levied on those who make an unauthorised recording, or an unauthorised transmission of the hearing.
TCEA 2007, ss 29ZB, 29ZC

Objecting to a phone / video hearing

If you consider that a phone / video hearing is not in the interests of justice, you should inform the Tribunal as soon as possible and give your reasons. This can be simply via an email to taxappeals@justice.gov.uk, but you will need to explain your reasons, and attach any relevant evidence. Be sure to put your Tribunal reference number and the date of the hearing in the header box of the email, and, if the hearing is within the next few days, put URGENT in the header box as well.

Possible reasons might include a witness being unable to access video technology (but consider then whether an audio hearing might be possible) or the length / complexity of the hearing, the need to have an interpreter, and / or the extent of the disputed evidence and cross-examination ― see the message from the Lord Chief Justice, Master of the Rolls and President of the Family Division. However, note that both the Supreme Court and Court of Appeal have conducted video hearings since the beginning of the coronavirus pandemic by reference to the similar position in the civil courts. The President of the Tribunal has said that:

‘The parties may feel that appeals in which the credibility of a witness is a significant factor are less suitable for remote hearings, but that is not the experience of the judges of the Tribunal and hearings in which there will be cross-examination of witnesses are being listed as video hearings.’

First-tier Tribunal frequently asked questions, page 3

Objections on the basis that the general public may be able to obtain copies of the recording are unlikely to succeed. See the general commentary on confidentiality and privacy in the Should I appeal to the Tribunal? guidance note.

Physical hearing before the end of the pandemic

Although the normal position is that there will be no physical hearings at which parties are present for the foreseeable future, there may be exceptional cases. If you consider that the taxpayer’s case (a) cannot be dealt with on the papers, by phone or by video, and (b) cannot wait until after the end of the coronavirus lockdown, you must apply to the President of the Tribunal, setting out your reasons. His permission (or that of his delegate) is required before a live hearing can take place.
Updated guidance for users on the administration and conduct of proceedings

There is specific guidance on social distancing and other measures if an oral hearing does take place.
Guidance for Tribunal judges and members – COVID-19 measures

Physical hearing in the future

Cases which cannot be dealt with on paper, by video or by audio because it is not in the interests of justice, and cases which cannot be dealt with because of insufficient capacity in the Tribunal, will be relisted for an oral hearing as soon as possible after the end of the coronavirus lockdown.
Updated guidance for users on the administration and conduct of proceedings

If you have an appeal which has been listed for a hearing well into the future, the Tribunal is unlikely to change those arrangements at this stage, in the hope that the appeal can proceed as planned.

Note that it is possible that some face-to-face hearings will resume in July 2020, and that hearings are already being dual listed for Taylor House in London from September 2020 (ie both a face-to-face and a remote hearing are being listed for the same case). It is also expected that some hearings will continue to be held remotely where parties are unable to travel. Another possibility is that a hearing could be held partially remotely, with some participants there in person and some participants (eg witnesses) attending by video link.
First-tier Tribunal frequently asked questions, page 4

For the HM Court & Tribunal Service guidance on the resumption of face-to-face hearings, see the GOV.UK website.

Triage

The Pilot Practice Direction on contingency arrangements says that a tribunal may ‘triage’ cases, and sets out a possible procedure. There is nothing currently to suggest that the First-tier Tribunal will use that process.

Appealing a Tribunal decision

If your appeal has already been heard by the Tribunal, and you received a written judgment before 24 March 2020, the Tribunal Rules provide for specific time limits in relation to the next stage. These are normally set out at the end of the judgment.

The time limits in the Rules are:

  • 28 days to ask for a full decision if you received a summary or short judgment (SI 2009/273, Rule 35(5))
  • 56 days to appeal the judgment if you received a full decision (SI 2009/273, Rule 39(2))

Those time limits were extended by the general stay until 21 April 2020, but then began to run again. The same is true of the 28-day time limit for applying for a decision to be set aside. The further stay that applied to certain Complex and Standard cases did not extend these time limits.
SI 2009/273, Rule 38(3)

Be very careful not to miss the new time limits. Although it is possible for the First-tier Tribunal to allow a permission to appeal application to be made after the time limit if you have good reasons for being late (which may include coronavirus-related matters), the Tribunal may decide that your reasons are not sufficient. Late applications for permission to appeal are discussed in the Appeals – the next stage guidance note.

If the judgment in your case was issued after 24 March 2020, it was not covered by the general stay. Check the final paragraph of the judgment carefully: the judge may have granted a longer time period because of the coronavirus. Otherwise, you must comply with the time limits set by the Tribunal Rules and referred to at the end of the judgment.
First-tier Tribunal frequently asked questions, page 2

The Upper Tribunal

The position for appeals currently before the Upper Tribunal is set out at the Judiciary website.

This should be read together with the Pilot Practice Direction on video / audio hearings and the amendments to the Upper Tribunal Rules in relation to video / audio hearings. The latter are essentially the same as the amendments to the First-tier Tribunal Rules.
SI 2020/416, reg 5 (inserting new SI 2008/2698, Rules 5A, 37A)

You may also find the general summary guidance for users of the Upper Tribunal useful.

Judicial review

There is a strict time limit for judicial review. A claim must be made:

  • promptly, and
  • in any event, no later than three months after the grounds to make a claim arose

Civil Procedure Rule 54.5; ARTG12040

In accordance with the protocol, the first step in a judicial review case is normally to send a pre-action letter to the person who made the decision you are challenging. The purpose of a pre-action letter is to set out the grounds of your appeal and to invite settlement, rather than going straight to the court. You must follow the format for the pre-action letter set out in the Civil Procedure Rules.
Pre-action protocol for judicial review; ARTG12030ARTG12040; Pre-action protocol for judicial review, Annex A

Usually, a copy of the pre-action letter must be sent to the HMRC Solicitor’s Office by post. However, during the coronavirus lockdown, pre-action letters should be sent by email to preactionletters@hmrc.gov.uk. The letter should be in a common format, such as PDF or Microsoft Word, and the attachments should not exceed 25mb in total. Unless requested to do so, do not send a hard copy duplicate.
HMRC press release, 9 April 2020

This email address is for pre-action letters only. Any other correspondence sent to that email address will be deleted unread. Once the case has been allocated to an HMRC lawyer, all subsequent correspondence should be sent to their HMRC email address.
HMRC press release, 9 April 2020

For more details of judicial review, see the Judicial review in tax cases guidance note.