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First-Tier Tribunal has no jurisdiction to supervise HMRC's conduct – Revenue and Customs Commissioners v Hok Limited [2012] UKUT 363 (TCC)

08 November 2012
In a recent decision the Upper Tribunal has held that the First-tier Tribunal does not have any jurisdiction, whether in judicial review or common law, to supervise HMRC's conduct.  In doing so, Mr Justice Warren and Judge Colin Bishopp of the Tax and Chancery Chamber of the Upper Tribunal quashed a decision of the First-tier Tribunal to discharge late filing penalties on grounds of fairness.  There was no dispute that the penalties were due in accordance with the statute, and that the amount was fixed by the statute, and therefore the question was whether HMRC should be precluded from imposing and collecting the penalties due; that was a question of administration that is only capable of determination by judicial review.

In passing the Tribunals, Court and Enforcement Act 2007 from which the jurisdiction of the First-tier Tribunal is derived, Parliament must be taken to have known the difference between statutory, common law and judicial review jurisdictions.  It was clear that Parliament's intention was to leave supervision of the conduct of HMRC and similar public bodies to the High Court, save to the limited extent that such functions had been conferred on the Upper Tribunal.

This case is the latest in a series of decisions testing the boundary between statutory appeal rights against HMRC and the scope of judicial review.  It highlights the limits of the appeal jurisdiction and reaffirms the importance of pursuing judicial review proceedings where what is in issue is the fairness or reasonableness of HMRC's conduct and not merely the legal position under the tax statutes.  Where a case gives rise to both types of argument, the only prudent course of action is to commence parallel proceedings within the judicial review time limits, and either to stay one set of proceedings or seek to have them heard together in the Upper Tribunal or the High Court.  For a fuller article on parallel proceedings, please click here.

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