The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009

Made: 5th February 2009

Laid before Parliament: 13th February 2009

Coming into force: 1st April 2009

After consulting in accordance with paragraph 28(1) of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 , the Tribunal Procedure Committee has made the following Rules in exercise of the power conferred by sections 9(3), 22 and 29(3) of, and Schedule 5 to, that Act.

The Lord Chancellor has allowed the Rules in accordance with paragraph 28(3) of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.

PART 1 — Introduction

Citation, commencement, application and interpretation

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• (1) These Rules may be cited as the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 and come into force on 1st April 2009.

• (2) These Rules apply to proceedings before the Tax Chamber of the First-tier Tribunal.

• (3) In these Rules—

• “the 2007 Act” means the Tribunals, Courts and Enforcement Act 2007;

• “appellant” means—the person who starts proceedings (whether by bringing or notifying an appeal, by making an originating application, by a reference, or otherwise);in proceedings started jointly by more than one person, such persons acting jointly or each such person, as the context requires;a person substituted as an appellant under rule 9 (substitution and addition of parties);

• “Basic case” means a case allocated to the Basic category under rule 23 (allocation of cases to categories);

• “CAA case” means an application under section 563 of the Capital Allowances Act 2001;

• “Complex case” means a case allocated to the Complex category under rule 23 (allocation of cases to categories);

• “Compliance Officer” means the Compliance Officer for IPSA;

• “Default Paper case” means a case allocated to the Default Paper category under rule 23 (allocation of cases to categories);

• “devolved Welsh case” means an appeal, referral or application under—a Measure or Act of the National Assembly for Wales; oran instrument made under a Measure or Act of the National Assembly for Wales;

• “document” means anything in which information is recorded in any form, and an obligation under these Rules to provide or allow access to a document or a copy of a document for any purpose means, unless the Tribunal directs otherwise, an obligation to provide or allow access to such document or copy in a legible form or in a form which can be readily made into a legible form;

• “financial restrictions civil penalty case” means an appeal under paragraph 26(3) or 28(1) of Schedule 7 to the Counter-Terrorism Act 2008;

• “hearing” means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication;

• “HMRC” means His Majesty’s Revenue and Customs but also includes—the Serious Organised Crime Agency when carrying out functions under section 317 of the Proceeds of Crime Act 2002; ...the Director of Border Revenue when carrying out functions under section 7 of the Borders, Citizenship and Immigration Act 2009; and the Gambling Commission when carrying out functions under Part 3 of the Finance Act 2022 (economic crime (anti-money laundering) levy);

• “IPSA” means the Independent Parliamentary Standards Authority;

• “MP expenses case” means an appeal under the Parliamentary Standards Act 2009;

• “party” means a person who is (or was at the time that the Tribunal disposed of the proceedings) an appellant or respondent in proceedings before the Tribunal;

• “practice direction” means a direction given under section 23 of the 2007 Act;

• “respondent” means—in a case other than an MP expenses case or a devolved Welsh case— HMRC, where HMRC is not an appellant;in proceedings brought by HMRC alone, a person against whom the proceedings are brought or to whom the proceedings relate;in a MP expenses case, the Compliance Officer; ... in a devolved Welsh case—WRA, where WRA is not an appellant;in proceedings brought by WRA alone, a person against whom the proceedings are brought or to whom the proceedings relate; andin any case, a person substituted or added as a respondent under rule 9 (substitution and addition of parties);

• “Standard case” means a case allocated to the Standard category under rule 23 (allocation of cases to categories);

• ...

• “Tribunal” means the First-tier Tribunal ...

• “WRA” means the Welsh Revenue Authority.

Overriding objective and parties' obligation to co-operate with the Tribunal

2

• (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

• (2) Dealing with a case fairly and justly includes—

• (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

• (b) avoiding unnecessary formality and seeking flexibility in the proceedings;

• (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

• (d) using any special expertise of the Tribunal effectively; and

• (e) avoiding delay, so far as compatible with proper consideration of the issues.

• (3) The Tribunal must seek to give effect to the overriding objective when it—

• (a) exercises any power under these Rules; or

• (b) interprets any rule or practice direction.

• (4) Parties must—

• (a) help the Tribunal to further the overriding objective; and

• (b) co-operate with the Tribunal generally.

Alternative dispute resolution and arbitration

3

• (1) The Tribunal should seek, where appropriate—

• (a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and

• (b) if the parties wish and provided that it is compatible with the overriding objective, to facilitate the use of the procedure.

• (2) Part 1 of the Arbitration Act 1996 does not apply to proceedings before the Tribunal.

PART 2 — General powers and provisions

Delegation to staff

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• (1) Staff appointed under section 40(1) of the 2007 Act (tribunal staff and services) or section 2(1) of the Courts Act 2003 (court officers, staff and services) may, if authorised by the Senior President of Tribunals under paragraph 3(3) of Schedule 5 to the 2007 Act, carry out functions of a judicial nature permitted or required to be done by the Tribunal.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Within 14 days after the date that the Tribunal sends notice of a decision made by a member of staff ... under paragraph (1) to a party, that party may make a written application to the Tribunal requiring that decision to be considered afresh by a judge.

Case management powers

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• (1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.

• (2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

• (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may by direction—

• (a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment setting down a time limit;

• (b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise);

• (c) permit or require a party to amend a document;

• (d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party;

• (e) deal with an issue in the proceedings as a preliminary issue;

• (f) hold a hearing to consider any matter, including a case management hearing;

• (g) decide the form of any hearing;

• (h) adjourn or postpone a hearing;

• (i) require a party to produce a bundle for a hearing;

• (j) stay (or, in Scotland, sist) proceedings;

• (k) transfer proceedings to another tribunal if that other tribunal has jurisdiction in relation to the proceedings and, because of a change of circumstances since the proceedings were started—

• (i) the Tribunal no longer has jurisdiction in relation to the proceedings; or

• (ii) the Tribunal considers that the other tribunal is a more appropriate forum for the determination of the case;

• (l) suspend the effect of its own decision pending the determination by the Tribunal or the Upper Tribunal, as the case may be, of an application for permission to appeal, a review or an appeal.

Procedure for applying for and giving directions

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• (1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative.

• (2) An application for a direction may be made—

• (a) by sending or delivering a written application to the Tribunal; or

• (b) orally during the course of a hearing.

• (3) An application for a direction must include the reasons for making that application.

• (4) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any direction to every party and to any other person affected by the direction.

• (5) If a party or other person sent notice of the direction under paragraph (4) wishes to challenge a direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.

Failure to comply with rules etc.

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• (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction does not of itself render void the proceedings or any step taken in the proceedings.

• (2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—

• (a) waiving the requirement;

• (b) requiring the failure to be remedied;

• (c) exercising its power under rule 8 (striking out a party's case);

• (d) restricting a party's participation in proceedings; or

• (e) exercising its power under paragraph (3).

• (3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act (Upper Tribunal to have powers of High Court or Court of Session) in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—

• (a) to attend at any place for the purpose of giving evidence;

• (b) otherwise to make themselves available to give evidence;

• (c) to swear an oath in connection with the giving of evidence;

• (d) to give evidence as a witness;

• (e) to produce a document; or

• (f) to facilitate the inspection of a document or any other thing (including any premises).

Striking out a party's case

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• (1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with the direction would lead to the striking out of the proceedings or that part of them.

• (2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—

• (a) does not have jurisdiction in relation to the proceedings or that part of them; and

• (b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

• (3) The Tribunal may strike out the whole or a part of the proceedings if—

• (a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;

• (b) the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or

• (c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding.

• (4) The Tribunal may not strike out the whole or a part of the proceedings under paragraphs (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.

• (5) If the proceedings, or part of them, have been struck out under paragraphs (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.

• (6) An application under paragraph (5) must be made in writing and received by the Tribunal within 28 days after the date that the Tribunal sent notification of the striking out to the appellant.

• (7) This rule applies to a respondent as it applies to an appellant except that—

• (a) a reference to the striking out of the proceedings must be read as a reference to the barring of the respondent from taking further part in the proceedings; and

• (b) a reference to an application for the reinstatement of proceedings which have been struck out must be read as a reference to an application for the lifting of the bar on the respondent taking further part in the proceedings.

• (8) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submissions made by that respondent, and may summarily determine any or all issues against that respondent.

Substitution and addition of parties

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• (1) The Tribunal may give a direction substituting a party if—

• (a) the wrong person has been named as a party; or

• (b) the substitution has become necessary because of a change in circumstances since the start of proceedings.

• (2) The Tribunal may give a direction adding a person to the proceedings as a respondent.

• (3) A person who is not a party to proceedings may make an application to be added as a party under this rule.

• (4) If the Tribunal refuses an application under paragraph (3) it must consider whether to permit the person who made the application to provide submissions or evidence to the Tribunal.

• (5) If the Tribunal gives a direction under paragraph (1) or (2) it may give such consequential directions as it considers appropriate.

Orders for costs

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• (1) The Tribunal may only make an order in respect of costs (or, in Scotland, expenses)—

• (a) under section 29(4) of the 2007 Act (wasted costs) and costs incurred in applying for such costs;

• (b) if the Tribunal considers that a party or their representative has acted unreasonably in bringing, defending or conducting the proceedings; ...

• (c) if—

• (i) the proceedings have been allocated as a Complex case under rule 23 (allocation of cases to categories); and

• (ii) the taxpayer (or, where more than one party is a taxpayer, one of them) has not sent or delivered a written request to the Tribunal, within 28 days of receiving notice that the case had been allocated as a Complex case, that the proceedings be excluded from potential liability for costs or expenses under this sub-paragraph; or

• (d) in a MP expenses case, if—

• (i) the case has been allocated as a Complex case under rule 23 (allocation of cases to categories); and

• (ii) the appellant has not sent or delivered a written request to the Tribunal, within 28 days of receiving notice that the case had been allocated as a Complex case, that the proceedings be excluded from potential liability for costs or expenses under this sub-paragraph.

• (2) The Tribunal may make an order under paragraph (1) on an application or of its own initiative.

• (3) A person making an application for an order under paragraph (1) must—

• (a) send or deliver a written application to the Tribunal and to the person against whom it is proposed that the order be made; and

• (b) send or deliver with the application a schedule of the costs or expenses claimed in sufficient detail to allow the Tribunal to undertake a summary assessment of such costs or expenses if it decides to do so.

• (4) An application for an order under paragraph (1) may be made at any time during the proceedings but may not be made later than 28 days after the date on which the Tribunal sends—

• (a) a decision notice recording the decision which finally disposes of all issues in the proceedings; or

• (b) notice under rule 17(2) of its receipt of a withdrawal which ends the proceedings.

• (5) The Tribunal may not make an order under paragraph (1) against a person (the “paying person”) without first—

• (a) giving that person an opportunity to make representations; and

• (b) if the paying person is an individual, considering that person's financial means.

• (6) The amount of costs (or, in Scotland, expenses) to be paid under an order under paragraph (1) may be ascertained by—

• (a) summary assessment by the Tribunal;

• (b) agreement of a specified sum by the paying person and the person entitled to receive the costs or expenses (the “receiving person”); or

• (c) assessment of the whole or a specified part of the costs or expenses , including the costs or expenses of the assessment, incurred by the receiving person, if not agreed.

• (7) Following an order for assessment under paragraph (6)(c) the paying person or the receiving person may apply—