A missed appeal deadline is one of the most common and most avoidable, ways a meritorious tax dispute is lost before it begins. The 30-day window is short and the law on getting a late appeal admitted is strict. The Court of Appeal’s January 2026 decision in HMRC v Medpro Healthcare Ltd [2026] EWCA Civ 14 has now confirmed the framework the First-tier Tribunal must apply. This guide analyses the Martland three-stage test, the treatment of adviser failures in Katib and how to maximise the prospects of a late appeal being admitted.
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Why This Matters
HMRC decisions, assessments, penalties, personal liability notices, information-notice penalties and review conclusions, carry a 30-day appeal window. Miss it and the taxpayer cannot appeal as of right: they must persuade the First-tier Tribunal (FTT) to exercise its discretion to admit a late appeal. That discretion is applied stringently. A taxpayer with an unanswerable substantive case can still find the door closed if the delay was long and the reasons poor. Understanding the framework and preparing the application properly, is therefore essential and frequently determinative.
The Appeal Deadlines
The starting point is the relevant statutory time limit. For direct taxes, s31A TMA 1970 requires a notice of appeal within 30 days of the decision; for VAT, s83G VATA 1994 sets the 30-day limit. Where the taxpayer has accepted a statutory review, time generally runs from the review conclusion letter. The FTT’s power to permit a late appeal is found in the relevant statute (for example s49 TMA 1970, s83G(6) VATA 1994) and, procedurally, in the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. Even where the statute describes the discretion as broad or “unfettered,” the case law structures how it must be exercised.
The Martland Three-Stage Test
The governing authority is the Upper Tribunal’s decision in Martland v HMRC [2018] UKUT 178 (TCC). Drawing on the civil procedure relief-from-sanctions jurisprudence (Denton v TH White Ltd [2014] EWCA Civ 906), the Upper Tribunal directed the FTT to approach a late appeal in three stages:
- Establish the length of the delay, and decide whether it is serious and/or significant.
- Establish the reasons why the default occurred.
- Evaluate all the circumstances of the case, conducting a balancing exercise that weighs the merits of the reasons given for the delay and the prejudice that would be caused to both parties by granting or refusing permission, bearing in mind the particular importance of the need for litigation to be conducted efficiently and at proportionate cost and for statutory time limits to be respected.
Martland emphasised that the third-stage balancing exercise is where the decision is actually made: the first two stages are essential factual groundwork, but it is the overall evaluation, giving particular weight to the public interest in respecting time limits, that determines the outcome. The Upper Tribunal also cautioned the FTT against being drawn into a detailed examination of the underlying merits at this stage (see below).
Compliance Culture: BPP Holdings
The strictness of the modern approach reflects the Supreme Court’s decision in HMRC v BPP Holdings Ltd [2017] UKSC 55; [2017] STC 1655, which confirmed that the tax tribunals should adopt essentially the same approach to compliance with rules, directions and time limits as the ordinary courts. The relaxed, “tax is different” attitude that some had assumed was rejected. Statutory and procedural deadlines in the tax tribunals are to be taken seriously, and the consequences of non-compliance are real. Medpro expressly follows BPP Holdings.
Adviser Failures: Katib
A recurring feature of late-appeal applications is the assertion that the delay was the fault of the taxpayer’s accountant or agent, not the taxpayer. The Upper Tribunal addressed this in HMRC v Katib [2019] STC 2106. The general rule is that the failures of a taxpayer’s adviser are to be attributed to the taxpayer: a litigant who chooses to act through an agent is, in the ordinary case, bound by the agent’s defaults. Reliance on an adviser who simply failed to lodge the appeal in time is therefore rarely, by itself, a good reason for the delay.
This is not an absolute rule, the full circumstances are always weighed at the third Martland stage, and there may be exceptional cases, but practitioners should not assume that “it was my accountant’s fault” will carry the day. It usually will not. The taxpayer’s own conduct, including whether they took reasonable steps to ensure the appeal was made, remains relevant.
Medpro [2026]: The Latest Word
In HMRC v Medpro Healthcare Ltd [2026] EWCA Civ 14, a healthcare company and its director had been issued with assessments, penalties and personal liability notices following a 2019 investigation. Three appeals were notified to the FTT more than 30 days after the review conclusion letters. The FTT refused an extension of time. On appeal, the taxpayers argued that s83G(6) VATA 1994 conferred an “unfettered” discretion such that the FTT should not be bound by Martland and Katib and drew analogies with the discretion to allow late personal-injury claims under s33 of the Limitation Act 1980 and claims under the Inheritance (Provision for Family and Dependants) Act 1975. The Upper Tribunal, by a casting vote, had accepted that argument.
The Court of Appeal allowed HMRC’s appeal and remitted the case to the FTT to decide the late-appeal question on the basis that the Martland guidance, as amplified in Katib, was appropriate. The Court held:
- A superior tribunal can give guidance on a discretionary power whether the power is created by primary or secondary legislation and even where the discretion appears “unfettered”;
- Guidance is guidance: the FTT may depart from it only if it gives sound reasons for doing so;
- The Limitation Act / 1975 Act analogies do not assist taxpayers. Those powers concern private litigation raising claims yet to be investigated (personal injury; provision out of an estate). A late tax appeal is in the realm of public law, a true appeal against a decision already made and already investigated, so the policy considerations are different.
The Role of the Underlying Merits
A common misconception is that a strong substantive case will secure admission of a late appeal. The position is more limited. Following Martland, the FTT will not generally conduct a detailed evaluation of the merits when deciding whether to extend time, because that would turn the permission hearing into a mini-trial. The merits are relevant only where they are obvious, a case that is clearly very strong or clearly hopeless, may weigh in the balance, but in the ordinary run of cases the application turns on the length of and reasons for, the delay and the balance of prejudice. Advisers should plead the merits where they are genuinely clear, but should not rely on them to excuse a long or poorly-explained delay.
Practitioner Strategy
Act Immediately
The single most important factor is the length of the delay. The moment a missed deadline is discovered, lodge the appeal and the application for permission without further delay, continuing delay after the problem is identified is heavily weighed against the taxpayer. Promptness once the issue is known can itself be a powerful point in the balancing exercise.
Build the Factual Record on the Reasons
Provide a clear, evidenced chronology explaining why the deadline was missed: illness, a genuine misunderstanding of the deadline, a serious life event, postal or communication failures. Support it with documents. Address what the taxpayer personally understood and did, not merely what an adviser failed to do.
Confront the Katib Point Head-On
Where an adviser was at fault, do not stop there. Explain what the taxpayer reasonably believed, what instructions were given and why the taxpayer could not have realised the appeal had not been made. Anticipate that adviser fault alone will not suffice.
Address Prejudice and the Public Interest
Demonstrate the prejudice to the taxpayer if permission is refused (often the loss of any opportunity to challenge a substantial liability) and the limited prejudice to HMRC if it is granted. Acknowledge, rather than ignore, the public interest in respecting time limits and explain why it is outweighed on the facts.
Plead Obvious Merits, Briefly
If the underlying appeal is plainly strong, for example, an assessment that is clearly out of time or a penalty resting on a deliberate-behaviour allegation HMRC cannot support, say so concisely. Do not turn the application into a full trial of the merits.
Worked Example: A Missed Review Deadline
Consider a director (“Client C”) issued with a personal liability notice following a review conclusion letter dated 1 March. The 30-day deadline expires on 31 March. Client C, who was abroad caring for a seriously ill relative, did not see the letter until mid-May and instructed advisers who lodged the appeal on 1 June, a delay of around two months.
- Stage 1, Length of delay: Two months is serious and significant. This must be acknowledged, not minimised.
- Stage 2, Reasons: The absence abroad caring for a relative, supported by travel records and medical evidence, explains the failure to see the letter. The prompt instruction of advisers on return supports the account.
- Stage 3, Balancing: Weigh the strong, evidenced reason and the prompt action once the letter was seen, the severe prejudice to Client C (loss of any challenge to a large personal liability) and the limited prejudice to HMRC, against the public interest in time limits. The promptness after discovery and the cogent reason materially improve the prospects.
- Merits: If, in addition, the PLN depends on a deliberate-inaccuracy finding that is weak on the evidence, plead that briefly as an obvious-merits point, but do not rely on it to excuse the delay.
Practitioner Checklist
- Confirm the deadline , 30 days from the decision or review conclusion letter and calculate the exact length of any delay.
- Lodge the appeal and permission application immediately on discovering the default; do not allow further delay.
- Work through the three Martland stages , length of delay, reasons and the all-circumstances balancing exercise.
- Evidence the reasons with a documented chronology focused on the taxpayer’s own knowledge and conduct.
- Do not rely on adviser fault alone (Katib); address what the taxpayer reasonably believed and did.
- Set out the prejudice to the taxpayer of refusal and the limited prejudice to HMRC of admission.
- Acknowledge the public interest in respecting time limits (BPP Holdings) and explain why it is outweighed.
- Plead obvious merits concisely; avoid converting the application into a mini-trial.
- Do not argue the discretion is “unfettered” , after Medpro, the Martland/Katib framework applies.
Frequently Asked Questions
What is the test for a late appeal to the tax tribunal?
The First-tier Tribunal applies the three-stage approach in Martland v HMRC [2018] UKUT 178 (TCC): establish the length of the delay and whether it is serious or significant; establish the reasons for the delay; and evaluate all the circumstances in a balancing exercise, giving particular weight to the need to respect statutory time limits and conduct litigation efficiently. The Court of Appeal confirmed in HMRC v Medpro Healthcare [2026] EWCA Civ 14 that the FTT should follow this guidance.
Is my accountant’s failure to appeal in time a good reason for delay?
Usually not. Following HMRC v Katib [2019] STC 2106, the failures of a taxpayer’s adviser are generally treated as the failures of the taxpayer. Reliance on an adviser who missed the deadline is rarely, by itself, a good reason for a late appeal, although the full circumstances are always weighed at the third Martland stage. Address what the taxpayer personally understood and did.
How long do I have to appeal an HMRC decision?
Generally 30 days from the date of the appealable decision or, where a statutory review has been carried out, from the review conclusion letter (s31A TMA 1970 for direct taxes; s83G VATA 1994 for VAT). If the deadline is missed, the taxpayer must apply to the First-tier Tribunal for permission to make a late appeal, decided under the Martland framework.
Does the strength of my underlying case help me get a late appeal admitted?
Only to a limited extent. The Tribunal will not usually conduct a detailed assessment of the merits when deciding whether to admit a late appeal, unless the merits are obvious one way or the other. A very strong or very weak case may carry some weight in the balancing exercise, but it does not displace the need to address the length of and reasons for, the delay.