Wyatt Paul v The Commissioners for HMRC

A respondent who prevailed below requires permission to advance a new point on an appeal. The appellate control of new arguments is party-neutral and is exercised through the Upper Tribunal’s case-management discretion, guided by the overriding objective.

Permission will ordinarily be refused where the point could have been raised below and, if it had been raised, the first-instance hearing would have been conducted differently concerning the evidence. This may be so even if no further evidence is presently identified. A tribunal need decide only the issues properly before it; excluding an unraised point does not conflict with a binding authority that would govern were that point to arise.

The appellant appealed the First-tier Tribunal decision in Wyatt Paul v HMRC [2020] UKFTT 415 (TC). The remaining ground challenged the service and receipt of an enquiry notice under the Taxes Management Act 1970.

Although HMRC had succeeded before the First-tier Tribunal, its Rule 24 response advanced a new contention that the appellant was estopped by convention from denying that a valid enquiry had been opened. The appellant objected. The issue before the Upper Tribunal was whether HMRC needed permission to raise that new argument and, if so, whether permission should be granted.

1. Permission refused. HMRC required the Upper Tribunal’s permission to raise the new estoppel-by-convention argument, notwithstanding that HMRC had succeeded before the First-tier Tribunal.

2. The principles governing new points on appeal apply to both appellants and respondents. Their rationale is party-neutral: parties and the court must know the issues to be determined, because those issues affect evidence, case management, expense and the conduct of the hearing. Litigation should ordinarily be resolved once and for all.

3. The Upper Tribunal’s discretion under Rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is to be exercised fairly and justly. The appellate authorities on new points provide instructive guidance for that discretion.

4. HMRC could have raised estoppel before the First-tier Tribunal but did not. Although HMRC said that the existing material was sufficient and the appellant had not identified specific further evidence, the decisive consideration was different. Had estoppel been raised below, the evidence would have been dealt with differently: the appellant might not have consented to a paper determination and would have sought to cross-examine HMRC’s witness. The First-tier Tribunal might also have assessed differently whether it could fairly determine the case without a hearing.

5. The Upper Tribunal was not required to introduce the estoppel issue itself merely because Tinkler v HMRC [2021] UKSC 39 was binding where estoppel by convention arose. If the point was excluded, it was not an issue for decision and no conflict with that authority arose.

The permission necessary for HMRC to argue estoppel by convention was therefore refused.

• Upper Tribunal (Tax and Chancery Chamber): Permission for HMRC, as respondent, to raise a new estoppel-by-convention argument was refused.
• First-tier Tribunal (Tax Chamber): Wyatt Paul v HMRC [2020] UKFTT 415 (TC) dismissed the appellant’s appeal.