Steven James Czerwionka v The Commissioners for HMRC

Permission to appeal from a refusal to admit a late tax appeal should be granted where the proposed grounds disclose an arguable error of law. In evaluating lateness, the tribunal must address the appellant’s actual explanation, consider relevant circumstances cumulatively, and assess the merits and any prejudice to HMRC where those matters are materially raised. The tribunal may consider whether an appellant authorised a return, as distinct from authorising a tax claim. Publication of favourable decisions does not, by itself, justify a late appeal, but that principle cannot be applied without regard to the appellant’s personal circumstances. Alleged fraud maxims do not convert a discretionary power to admit a late appeal into an obligation to do so.

Mr Czerwionka sought permission to appeal to the Upper Tribunal against the First-tier Tribunal’s refusal to permit a late appeal concerning a discovery assessment for 2016/17 and the removal of an Enterprise Investment Scheme claim. The appeal was more than four years late. The First-tier Tribunal had refused permission, and subsequently refused an in-time application for permission to appeal.

On oral renewal, the appellant advanced grounds concerning alleged pressure from HMRC, lack of authority for Capital Allowances Consultants Ltd to file his return, absence of prejudice to HMRC, his explanation for delay, the merits of the proposed appeal, fraud, other First-tier Tribunal decisions, unsigned returns, missing assessments and personal vulnerability. The central question was whether any ground disclosed an arguable error of law.

1. Permission granted in part. Permission to appeal was granted on Grounds 1 to 5 and refused on Grounds 6 to 11.
2. An appeal from the First-tier Tribunal lies only on a point of law under section 11 of the Tribunals, Courts and Enforcement Act 2007. Permission should be granted where the proposed grounds disclose an arguable error of law.
3. The First-tier Tribunal arguably failed to take into account the appellant’s evidence that he had been pressured, or reasonably felt pressured, during an HMRC telephone call when explaining the delay. It also arguably failed to address his case that he had not authorised Capital to file the self-assessment returns. That issue could be material because authorisation of a return is distinct from authorisation of a claim, as illustrated by Robson v HMRC [2023] UKFTT 226 (TC).
4. It was arguable that the First-tier Tribunal failed to consider the absence of prejudice to HMRC, misunderstood the appellant’s written explanation for delay, and failed to assess his personal and other circumstances in combination. The relevant matters included mental health, personal upheaval, remote work, alleged pressure and when he first appreciated that he might have a viable case.
5. The First-tier Tribunal was entitled to treat non-binding decisions as not determining the merits. The later discovery of favourable decisions was not, by itself, a good reason for delay. However, the finality rationale discussed in Mulvenna & Anor v Secretary of State for Communities and Local Government [2015] EWHC 394 (Admin) and Moor and Anor v HMRC [2022] UKFTT 411 (TC) could not necessarily be applied without considering the appellant’s wider circumstances.
6. The fraud maxims discussed in HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6 did not establish an obligation to extend time or determine the underlying tax liability. Arguments based on unsigned returns and the Bills of Exchange Act 1882 disclosed no arguable error of law. Missing assessments did not render the late-appeal proceedings a nullity.
7. The granted grounds were directed to the permission application and did not determine the substantive tax appeal. The appellant was directed to confirm within 28 days whether he wished to pursue Grounds 1 to 5 as his notice of appeal.

• Upper Tribunal (Tax and Chancery Chamber): Permission to appeal was granted on Grounds 1 to 5 and refused on Grounds 6 to 11.
• First-tier Tribunal: On 12 June 2025, refused permission to bring the appeal against the discovery assessment out of time. Permission to appeal was refused on 14 August 2025.