Strike out applications at the tax tribunal

Q: When must the tribunal strike out?

There are two mandatory cases. Breach of an unless order. Under rule 8(1), proceedings are automatically struck out if the appellant fails to comply with a direction saying that failure "would" lead to strike out. ARTG8340 notes that this is commonly called an unless order. No jurisdiction. Under rule 8(2), the tribunal must strike out proceedings it has no jurisdiction to hear, unless it transfers them to another tribunal. ARTG8340 gives the example of a taxpayer who notifies the tribunal while an HMRC review is still running. Lack of jurisdiction also catches appeals against decisions that carry no statutory right of appeal, such as a refusal of Time to Pay (see appealing a Time to Pay refusal), and direct tax appeals sent to the tribunal without first appealing to HMRC, which ARTG2440 says HMRC will apply to strike out for lack of jurisdiction.

Q: What are the common mistakes?

Ignoring directions. An unless order needs no further decision once broken. Not replying to an invitation to make representations. It may be your only chance before the appeal ends. Appealing to the tribunal during an HMRC review. The tribunal lacks jurisdiction and will strike the appeal out. Grounds that only complain of unfairness. These invite a no reasonable prospect application. Missing the 28 day reinstatement window. After that the strike out stands. If HMRC opens a check into your return, tax investigation insurance pays your accountant's fees. Solar Protect cover pays up to £100,000 with no excess; it never pays tax, interest or penalties. Read how our cover works or get a quote.

Rule 8 of the First tier Tribunal (Tax Chamber) rules lets the tribunal end an appeal without a full hearing. It must strike out an appeal it has no jurisdiction to hear, it happens automatically when an “unless order” is broken, and it may strike out where the appellant has failed to comply or cooperate or the case has no reasonable prospect of success. The same rule can bar HMRC from taking further part, after which the tribunal may decide issues against them.

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What does striking out mean?

Striking out ends the proceedings, or part of them, without the tribunal deciding the merits at a full hearing. The power is in rule 8 of the Tribunal Procedure (First tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273). Rule 8(7) applies it to the respondent, usually HMRC, with a different effect: the respondent is barred from taking further part rather than having the case struck out.

HMRC’s Appeals, Reviews and Tribunals Guidance (ARTG8340) describes the effect of a strike out on a taxpayer’s appeal. The appeal proceedings end. If there was a statutory review, the review conclusion stands. If there was no review, HMRC’s original decision stands, and the papers go back to the decision maker to give effect to it.

When must the tribunal strike out?

There are two mandatory cases.

Breach of an unless order. Under rule 8(1), proceedings are automatically struck out if the appellant fails to comply with a direction saying that failure “would” lead to strike out. ARTG8340 notes that this is commonly called an unless order.
No jurisdiction. Under rule 8(2), the tribunal must strike out proceedings it has no jurisdiction to hear, unless it transfers them to another tribunal. ARTG8340 gives the example of a taxpayer who notifies the tribunal while an HMRC review is still running.

Lack of jurisdiction also catches appeals against decisions that carry no statutory right of appeal, such as a refusal of Time to Pay (see appealing a Time to Pay refusal), and direct tax appeals sent to the tribunal without first appealing to HMRC, which ARTG2440 says HMRC will apply to strike out for lack of jurisdiction.

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When may the tribunal strike out?

Rule 8(3) gives a discretion to strike out all or part of the proceedings where:

the appellant has failed to comply with a direction that said failure “could” lead to strike out;
the appellant has failed to cooperate with the tribunal so badly that it cannot deal with the proceedings fairly and justly; or
the tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding.

The third ground is the one most often argued over. ARTG8340 says it applies in First tier Tribunal cases, and Upper Tribunal cases heard at first instance, and in practice may follow an HMRC application. Grounds that only say a decision is unfair, which HMRC’s guidance (ARTG2170) does not treat as valid grounds, are an obvious target.

Rule 8(4) is an important safeguard. The tribunal cannot strike out for lack of jurisdiction, non cooperation or no reasonable prospect without first giving the appellant a chance to make representations. Rule 7(2) also offers lesser responses to a breach, including waiving the requirement or ordering it to be remedied, and ARTG8510 confirms that a failure to comply does not by itself make the proceedings void.

Can HMRC be barred from the proceedings?

Yes. Under rule 8(7) the same grounds apply to a respondent, so HMRC can be barred for breaching an unless order, failing to cooperate, or having no reasonable prospect of defending the appeal. Rule 8(8) then lets the tribunal ignore HMRC’s submissions and summarily decide any or all issues against them.

Barring applications often follow a missed deadline. Rule 25 requires HMRC’s statement of case within 42 days in a Default Paper case, and 60 days in a Standard or Complex case, after the tribunal sends the notice of appeal. A late statement must include a request for an extension and the reason for delay (rule 25(4)). Case categories are explained in tax tribunal appeal categories.

How do you apply for a strike out or barring order?

A strike out or barring order is a direction, so rule 6 applies. You apply in writing to the tribunal, or orally at a hearing, and must give reasons. Rule 6(1) also lets the tribunal act on its own initiative. A good application:

names the rule 8 ground relied on;
identifies the direction breached, or explains why the tribunal has no jurisdiction or why the case cannot succeed even if the facts are as the other side says;
attaches the relevant decision letters, directions and correspondence; and
asks for a lesser order, such as an unless order, as an alternative.

HMRC’s own guidance shows where their applications come from. ARTG2172 says that where a taxpayer insists on appealing with grounds HMRC regard as invalid, HMRC will tell them to notify the tribunal and will apply for the appeal to be struck out.

How do you resist a strike out?

Use the right under rule 8(4) to make representations. Focus on the ground actually relied on. For no reasonable prospect, show that there is a real factual dispute needing evidence, or a properly arguable legal point. Ask to amend your grounds if they were badly worded, as rule 5(3)(c) lets the tribunal permit amendment. For a compliance failure, explain why it happened, comply at once and point out that rule 7(2) allows lesser measures. Rule 2 requires the tribunal to deal with cases fairly and justly, including ensuring parties can take part fully. Guidance on grounds is in writing grounds of appeal.

What happens after a strike out?

If proceedings were struck out under rule 8(1) or 8(3)(a) for breaching a direction, rule 8(5) and (6) allow a written application for reinstatement, received within 28 days after the tribunal sent notice of the strike out. HMRC can apply in the same way to have a bar lifted. ARTG8340 gives one month for the equivalent in the Upper Tribunal.

Reinstatement is not available after a strike out for lack of jurisdiction, non cooperation or no reasonable prospect. Section 11 of the Tribunals, Courts and Enforcement Act 2007 gives a right of appeal to the Upper Tribunal on a point of law, with permission, from First tier decisions other than excluded decisions. Rule 39 requires the permission application to reach the First tier Tribunal within 56 days. See Upper Tribunal tax appeals.

Costs can follow. Rule 10(1)(b) allows a costs order where a party has acted unreasonably in bringing, defending or conducting proceedings. See tribunal costs in tax appeals.

How might this play out?

Illustration only. Dan appeals a penalty but ignores a direction to send his list of documents by 1 June. The tribunal issues an unless order saying that if the list is not received by 15 June his appeal will be struck out. He sends it on 20 June. The appeal is struck out automatically. Dan applies for reinstatement 10 days later, explaining he was in hospital, with evidence. The tribunal reinstates the appeal. Had he waited more than 28 days, the penalty would have stood.

What are the common mistakes?

Ignoring directions. An unless order needs no further decision once broken.
Not replying to an invitation to make representations. It may be your only chance before the appeal ends.
Appealing to the tribunal during an HMRC review. The tribunal lacks jurisdiction and will strike the appeal out.
Grounds that only complain of unfairness. These invite a no reasonable prospect application.
Missing the 28 day reinstatement window. After that the strike out stands.

If HMRC opens a check into your return, tax investigation insurance pays your accountant’s fees. Solar Protect cover pays up to £100,000 with no excess; it never pays tax, interest or penalties. Read how our cover works or get a quote.

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Reviewed by Christine Anderson, Broker, Solar Protect. Last reviewed 24 October 2026. Part of Accountapedia, the Solar Protect guide to UK tax and accounting. This page is general information, not personalised advice.