AH0495 - General and Special Commissioners

Extent of Commissioners' powers

The jurisdiction of the Commissioners is statutory. If no appeal is provided for, the Commissioners do not have any jurisdiction even though there is a dispute between HMRC and the customer. Jurisdiction cannot be given to the Commissioners by agreement so even though both parties would like the Commissioners to determine an issue if there is no statutory power then the Commissioners cannot adjudicate. So, for example, they cannot adjudicate on

• HMRC's refusal to exercise an Extra-Statutory Concession in favour of the taxpayer, (see R v Inspector of Taxes ex parte Brumfield and others 61TC589 particularly p.593H and R v Inspector of Taxes ex parte Fulford Dobson 60TC168 particularly McNeil J at p.170F), or
• a refusal to extend a statutory time limit, for example, in connection with an election or a claim to a relief (losses, personal reliefs etc, including those where the statute provides that HMRC may allow such further time as they see fit) (see Steibelt v Paling (TCR8/00) and Privet v CIR (SpC279).

In such circumstances the Commissioners can only determine any appeal in accordance with statute and without regard to any discretionary power of HMRC alone.

As stated the Commissioners also cannot adjudicate where the Taxes Act provides for HMRC to direct on a particular matter with no right of appeal to the Commissioners in respect of that direction (see, for example, Regulation 81 of SI 2003/2682 in connection with directions under the PAYE code and Kelsall v Investment Chartwork Ltd TCL3384 in connection with directions in respect of contributions to a pension scheme).

Any direct challenge to HMRC’s decision on any of the matters above can only be by means of an application for Judicial Review (see 1950+). Similarly, where there is no statutory provision for an appeal to the High Court against a decision of the Commissioners, for example where the Commissioners have declined to admit a late appeal, an application for Judicial Review is the only way the appellant can challenge that decision directly.