Richard Warner v The Commissioners for HMRC

A taxpayer’s communication must be construed by the claim it actually makes. A request to amend a land transaction return to claim multiple dwellings relief does not also become a claim for overpayment relief merely because it seeks a reduction or discharge of tax. Where the statutory routes are independent, HMRC need not identify and determine an alternative claim the taxpayer did not make. Without a valid overpayment relief claim, no enquiry or closure notice arises under that claim regime, and there is no appealable decision. The Tribunal left open whether overpayment relief can be based on an omitted multiple dwellings relief claim. It observed conditionally that Case A may bar relief where the excess arose from a failure to claim, while Case C requires findings about the claimant’s knowledge before the relevant period expired.

Mr Warner bought two adjoining plots of land and filed land transaction returns without claiming multiple dwellings relief. He later wrote to HMRC seeking recalculation of the stamp duty land tax, framing his request as an amendment to the returns. HMRC refused it as out of time. No tax had been paid.

The First-tier Tribunal struck out his appeal, finding there was no appealable HMRC decision. On appeal, the Upper Tribunal considered whether the July 2018 letter was instead a claim for overpayment relief under the Finance Act 2003, and, conditionally, whether the statutory exclusions in Cases A and C applied. The central question was whether the letter made a valid overpayment relief claim.

1. Appeal dismissed. The July 2018 letter was a request to amend the land transaction returns to claim multiple dwellings relief, not a claim for overpayment relief under paragraph 34 of Schedule 10 to the Finance Act 2003. Its natural meaning, the route it expressly sought to use, HMRC’s response, and Mr Warner’s later correspondence all supported that reading. The difference between the original self-assessments and the revised liability was readily identifiable, and the absence of a declaration did not disqualify the letter on the arguments accepted for this appeal. Those points did not change the character of the claim.

2. A request seeking discharge of tax does not automatically make an alternative statutory claim where the sender intended, and HMRC understood, that the request was to use a different procedure. In a self-assessment regime, HMRC need not identify and consider every other route by which the relief sought might be claimed. Section 3 of the Human Rights Act 1998 did not require the letter to be treated as exercising both independent rights to relief. The lost opportunity to claim relief did not, on these facts, engage Article 1 of the First Protocol.

3. Since no overpayment relief claim was made, there could be no enquiry or closure notice in respect of such a claim and no right of appeal under paragraph 14 of Schedule 11A. The First-tier Tribunal was therefore right to strike out the proceedings for want of jurisdiction.

4. The Tribunal left open the general question whether overpayment relief may be claimed on the basis of an omitted multiple dwellings relief claim despite section 58D(2). It was not argued and the Tribunal expressed no view on it.

5. Its further analysis of Cases C and A in paragraph 34A of Schedule 10 was not necessary to the result. The First-tier Tribunal’s view that Case C could bar relief was an error of law: that conclusion required supporting findings about whether the claimant knew or ought reasonably to have known that relief was available before the relevant period expired. As to Case A, a failure to claim relief may amount to a mistake and prevent overpayment relief from circumventing the original claim limits, although the circumstances and cause of the failure may matter. The facts did not justify departure from that principle. The statutory scheme also left HMRC no residual discretion to allow a claim where a Case applied.

• Upper Tribunal (Tax and Chancery Chamber): Appeal dismissed. It upheld the strike-out for want of an appealable decision.
• First-tier Tribunal (Tax Chamber): Struck out the proceedings on the basis that HMRC had made no appealable decision: [2023] UKFTT 751 (TC).