In The Executors of David Harrison (deceased) & Anor v HMRC [2021] UKUT 0273, the Upper Tribunal (UT) dismissed an appeal against HMRC's refusal to accept a late notification of Fixed Protection 2012 for pension purposes. The UT found that the First Tier Tribunal (FTT) did not have jurisdiction to consider HMRC’s exercise of discretion.

  • David Harrison (deceased) and Simon Harrison (the appellants) sought Fixed Protection 2012 (FP2012) to benefit from a protected Lifetime allowance for pension purposes of £1.8m prior to it decreasing to £1.5m in 2012-13.
    • Notifications for FP2012 were due by 5 April 2012 under Regulation 4 of the Registered Pension Schemes (Lifetime Allowance Transitional Protection) Regulations 2011.
  • The appellants' FP2012 notifications were received by HMRC on 30 September 2015. The delay was due to the mistaken belief that enhanced protection had already been obtained.
  • HMRC used their discretion under Regulation 6 to reject the FP2012 notifications as not meeting the requirements of Regulation 4, being made after the April 2012 deadline.
  • Messrs Harrison Appealed to the First Tier Tribunal (FTT), which dismissed their appeal. The FTT found that:
    • Its jurisdiction is supervisory and not restricted to whether or not the conditions of Regulation 4 have been satisfied.
    • HMRC were entitled to take the view that the late FP2012 notices did not satisfy the requirements in Regulation 4.
    • HMRC exercising its discretion to refuse to accept the late notifications was reasonable. 

Messrs Harrison appealed to the Upper Tribunal (UT) which also decided in favour of HMRC. The UT found that:

  • The FTT does not have general supervisory jurisdiction.
  • Where an FP2012 appeal is notified to the FTT, the FTT’s sole jurisdiction is to consider whether the requirements of Regulation 4 are satisfied.
    • This included the relevant notification deadline, which had not been met in this case.

The FTT’s decision was set aside and remade by determining that the FTT had no power to consider the appellants’ appeals to the extent they related to HMRC’s exercise of discretion.

As no other issues were raised by the appellants' appeals against HMRC’s decisions, the appeals were dismissed.

Useful guides on this topic

Pensions: Tax rules and planning
What tax rules apply to pensions? What tax relief is available? What tax charges can arise? What planning opportunities are there?

Pensions: Unauthorised payment charges
What is a pension unauthorised payment? When does a tax charge arise? Who pays the charge?

Pensions: tax charge for excess contributions
When does a tax charge arise for excess pension contributions? What are taxpayers' responsibilities under Self Assessment? 

External links

The Executors of David Harrison (deceased) & Anor v HMRC [2021] UKUT 0273

The Executors of the Estate of David Harrison (deceased) & Anor v HMRC [2020] TC 07564

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