Engim Cenkci v The Commissioners for HMRC

An appeal from the FTT to the Upper Tribunal lies only on a point of law. Permission is granted where the grounds disclose an arguable material error of law or another compelling reason. The FTT does not err by failing to consider a submission or evidence that was not put before it. A litigant is generally responsible for an adviser’s failures. On the facts here, alleged incompetence or deceit, and the adviser’s later death, did not establish a compelling reason to reopen a late appeal. The public interest in correct tax assessments does not displace statutory appeal deadlines.

HMRC assessed Mr Cenkci to capital gains tax. His accountant, Ms Nihat, said she had appealed in July 2020, but the FTT found the appeal was not made until April 2021. On 9 March 2023, it refused permission to admit the late appeal in [2023] UKFTT 270 (TC). The FTT later refused to admit a very late application for permission to appeal that decision. Mr Cenkci then sought permission from the UT to appeal the 2023 decision. After an initial paper refusal on grounds prepared by his new accountants, counsel sought to amend the grounds. At an oral hearing, the UT allowed the amendment and considered only the amended grounds. The central question was whether those grounds showed an arguable error of law or another compelling reason to appeal, including alleged adviser deceit, new evidence, a discovery-assessment time-limit point and the adviser’s death.

1. Permission to appeal was refused. The UT considered the amended grounds advanced at the oral hearing.

2. Under the Tribunals, Courts and Enforcement Act 2007, an appeal from the FTT lies only on a point of law. The Chamber grants permission where grounds disclose an arguable error of law material to the outcome or another compelling reason, such as a point of general public importance, as stated in Spirit Motor Company v HMRC [2024] UKUT 00230 (TCC).

3. The FTT was not required to consider allegations or evidence that had not been put before it. Its failure to address such matters was not an error of law. The UT referred to Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 in support of that principle.

4. Following HMRC v Katib [2019] UKUT 0189 (TCC), failures by a litigant’s adviser are generally treated as the litigant’s failures, although the FTT may depart from that guidance. The alleged deceit and incompetence did not distinguish Mr Cenkci’s position; a greater degree of adviser incompetence did not improve the prospects of an appeal. The UT noted that the Court of Appeal had approved the guidance in HMRC v Medpro [2026] EWCA Civ 14.

5. Applying the guidance in Martland v HMRC [2018] UKUT 178, the UT considered that Mr Cenkci’s evidence would have been disputed and tested in cross-examination, and was therefore unlikely to have been considered by the FTT. For this permission application, the UT assumed permission would be given to use the evidence; it did not decide an application to admit it at a substantive appeal hearing.

6. The accountant’s death and the resulting absence of a possible claim against her did not strengthen Mr Cenkci’s case for relief from procedural default. The UT considered the point in light of Hytec Information Systems v Coventry City Council [1997] 1 WLR 666. The discovery-assessment time-limit point also disclosed no error: there was no evidence that it had been raised before the FTT. The public interest in taxpayers paying the correct amount of tax did not permit procedural time limits to be bypassed.

• Upper Tribunal (Tax and Chancery Chamber): initially refused permission on the papers on grounds drafted by Mr Cenkci’s new accountants. At an oral hearing, it allowed counsel’s application to amend the grounds and refused permission on those amended grounds.
• First-tier Tribunal (Tax Chamber): refused permission to admit Mr Cenkci’s late appeal against the CGT assessments on 9 March 2023: [2023] UKFTT 270 (TC). It later refused to admit a very late permission application and stated that it would have refused permission in any event.