John McFadzean v The Commissioners for HM Revenue and Customs
| Jurisdiction | UK Non-devolved |
| Judge | Judge Raghavan,Judge Cannan |
| Neutral Citation | [2019] UKUT 0349 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Tax,21 November 2019 |
| Date | 21 November 2019 |
| Published date | 21 November 2019 |
[2019] UKUT 0349 (TCC)
Appeal number: UT/2019/0014
PROCEDURE – Rule 9 FTT Procedure Rules– substitution of person as
appellant on grounds the wrong person had been named as a party – new
appellant objecting – whether FTT erred in law – no – appeal dismissed
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
JOHN McFADZEAN
Appellant
- and -
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS
Respondents
TRIBUNAL:
JUDGE SWAMI RAGHAVAN
JUDGE JONATHAN CANNAN
Sitting in public at The Royal Courts of Justice, Strand, London WC2 on 22
October 2019
The Appellant appeared in person
Laura Poots, counsel, instructed by the General Counsel and Solicitor to Her
Majesty’s Revenue & Customs for the Respondents
© CROWN COPYRIGHT 2019
DECISION
Introduction
1. This is an appeal by Mr John McFadzean against a case management direction of
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the First-tier Tribunal (“FTT”) issued on 24 September 2018 (“the FTT Decision”),
following an oral hearing on 20 September 2018, which substituted Mr McFadzean as
an appellant under Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Tax
Chamber) Rules (“the FTT Procedure Rules”). The direction was in relation to
appeals against an HMRC assessment and decision contained within a set of appeals
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by a company, of which Mr McFadzean is a director and sole shareholder (MX
Enterprises Ltd. (“MX Ltd.”)). Those appeals related to pension scheme sanction
charges and HMRC’s refusals to discharge liability which arose in the context of four
sets of pension scheme arrangements.
2. Under the relevant pension taxation legislation, it is the scheme administrator who
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is primarily liable for the scheme sanction charges. The scheme administrator, as
defined in the relevant statute, must be appointed in accordance with the rules of the
pension scheme. By the time the relevant appeals were notified to the FTT, the
common assumption was that MX Ltd. was the scheme administrator and the correct
appellant, however in amended grounds of appeal, which MX Ltd. later filed, MX
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Ltd. argued in relation to one of the pension scheme arrangements that it had not been
appointed as a scheme administrator and so was not liable to the scheme sanction
charge. After further investigation, HMRC accepted MX Ltd. was not appointed, but
maintained, that as regarded one specific assessment (the one for 2007-8 (“the
Relevant Assessment”)) and the associated HMRC refusal to discharge liability, that
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Mr McFadzean had been appointed as the scheme administrator. Whether Mr
McFadzean had been so appointed remains a matter of dispute, and is, HMRC say a
matter that will be resolved in the substantive proceedings which are yet to be heard.
3. HMRC applied, at a case management hearing that was listed before the FTT, to
substitute MX Ltd. with Mr McFadzean as the in relation to the Relevant
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Assessment. The FTT made that direction despite MX Ltd.’s objection. Mr
McFadzean submits that, for a number of reasons, the FTT’s decision substituting him
as the appellant was wrong in law. With the permission of the Upper Tribunal (“UT”),
he now appeals to the UT against the FTT Decision.
The Law
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4. Rule 9 of the FTT Procedure Rules provides, so far as relevant as follows:
“9 Substitution and addition of parties
(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
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circumstances since the start of proceedings.
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