Michael Kelly v The Commissioners for HMRC

Permission to appeal from the First-tier Tribunal is granted only where the proposed grounds disclose an arguable and material error of law, giving the appeal a realistic prospect of success, or where another compelling reason exists. The Upper Tribunal’s jurisdiction is confined to points of law.

A claim under section 32 of the Taxes Management Act 1970 requires a claim concerning double assessment and a refusal capable of being appealed. An appeal cannot be treated as an appeal against a later refusal which post-dates the notice of appeal. A tribunal may decline to determine a new, insufficiently argued jurisdictional point where it gives rational reasons for doing so.

Mr Kelly sought permission to appeal against the First-tier Tribunal’s decision, released on 10 July 2025, striking out his appeal against HMRC’s consequential amendment notices for several tax years. The First-tier Tribunal held that the notices were not appealable decisions under section 31 of the Taxes Management Act 1970 and that no appeal could proceed under section 32 because the necessary claim and refusal had not been established when the appeal was brought.

The First-tier Tribunal refused permission on 9 October 2025. The issue before the Upper Tribunal was whether the proposed grounds disclosed an arguable material error of law or another compelling reason for granting permission.

1. Permission test. The Upper Tribunal applied the established approach that permission should be granted where there is a realistic, rather than fanciful, prospect of success, or exceptionally some other good reason. The grounds must disclose an arguable error of law material to the outcome.
2. Jurisdiction and evidence. Complaints about missing documents and the underlying tax calculations did not bear materially on the First-tier Tribunal’s jurisdictional strike-out decision. The First-tier Tribunal was entitled to find that the relevant documents had not been the subject of proper submissions and to decline to determine a new section 32 point which had not been raised in the grounds or properly argued after the hearing.
3. Double assessment. Section 32 required a claim that the taxpayer had been assessed more than once for the same cause and chargeable period, followed by a refusal capable of appeal. The March 2022 correspondence was, on a fair and natural reading, an ongoing dispute about the figures rather than a formal refusal and appeal. Even if the January 2024 HMRC email constituted a refusal, it post-dated the October 2023 appeal and was not the decision under appeal.
4. Case management and fairness. The First-tier Tribunal acted rationally and fairly in raising section 32 of its own initiative, inviting submissions, and then declining to determine the issue in their absence. The overriding objective did not create jurisdiction where the statutory appeal requirements were unmet.
5. Disposition. The possible remaining tax dispute and a speculative costs claim did not alter the result. Permission to appeal was refused because the grounds disclosed no realistic prospect of success and there was no other compelling reason to grant permission.

• First-tier Tribunal (Tax Chamber): Decision released 10 July 2025. The appeal was struck out for want of jurisdiction.
• First-tier Tribunal (Tax Chamber): Permission to appeal refused on 9 October 2025.
• Upper Tribunal (Tax and Chancery Chamber): Permission to appeal refused on 27 February 2026.