In William Tinkler v HMRC [2019] EWCA 1392 the Court of Appeal ruled that a notice of an enquiry sent to a tax agent was not validly served on a taxpayer; the subsequent closure notice was also invalid.

A Closure Notice for a tax enquiry will only be valid if the underlying enquiry has been validly opened. For an enquiry to be validly opened a notice of enquiry must be served on the taxpayer.

  • HMRC served the original notice of enquiry under section 9A TMA 1970 by sending to Mr Tinkler at an old address (meaning he never received it) and a copy to his tax agent, who did acknowledge receipt and proceeded to respond to HMRC’s questions under the enquiry.
  • Mr Tinkler argued that it was not validly served on a taxpayer, therefore the closure notice which was subsequently issued was also invalid.

The First Tier tribunal (FTT) held the notice was not validly served on a taxpayer, invalidating the closure notice.

HMRC appealed and the Upper tribunal (UT)  disagreed, deciding that a notice could be validly served on a taxpayer via his agent:

  • Form 64-8 allows tax agents to receive notices from HMRC and therefore HMRC can serve notices via an agent.

The Court of appeal, in reversing the UT decision, agreed with the FTT:

  • On Form 64-8 and their online guidance, HMRC acknowledge that a "formal notice of enquiry" is a form which "must" be sent to the taxpayer and the authority to deal with the agent is limited to correspondence in relation to such enquiries, reflecting an agreement made with professional bodies.
  • This is a clearly expressed limitation on the general authority being sought by HMRC and the corresponding represented authority of agents, and a deliberate decision by HMRC.

On the point of estoppel, where HMRC claimed that Mr Tinkler was estopped from denying that the enquiry had been validly opened by the conduct of his agent, the Court of Appeal agreed with the UT:

  • Estoppel cannot amend or disapply the provisions of section 9A by agreement.
  • Mr Tinkler was not estopped by convention from denying that HMRC had opened a valid enquiry.

The judge said that HMRC had only themselves to blame for what occurred. They were at fault in sending the notice of enquiry to the wrong address, (the relevant officer had deliberately decided to send the notice to an address at which Mr Tinkler no longer resided rather than where HMRC had been asked to send correspondence), and they misled the agent into assuming that an enquiry had been validly opened.


By coincidence, the High Court has also considered some of these points in the judicial review  case of JJ Management LLP & Ors, R (On the Application Of) v HMRC & Anor [2019] EWHC 2006 (Admin) 

Links to our guides:

Closure Notices
When does HMRC issue a closure notice? Can a taxpayer demand one? Are there appeal rights?

How to appeal an HMRC decision

External links:

William Tinkler v HMRC [2019] EWCA 1392

UT decision: William Tinkler v HMRC [2018] UKUT 0073 (TCC) 

FTT decision: William Henry Tinker [2016] FTT TC4960