Representations should be made before applying for judicial review

For several years Mr and Mrs Archer had been in dispute with HMRC about two avoidance schemes. In 2014 the department issued accelerated payment notices (APNs) to both of them. They applied for judicial review.

The Archers later made representations against the notices under FA 2014 s 222. HMRC withdrew the APN issued to Mrs Archer but not the one issued to her husband. However the review did not proceed because HMRC issued a closure notice to Mr Archer and he paid the tax due. Mrs Archer’s liability was later settled by an agreement under TMA 1970 s 54.

Mrs Archer contended that HMRC should pay her costs arising from the judicial review but HMRC said she should have made representations under s 222 first.

The High Court found against the taxpayer so she appealed.

Lord Justice Henderson in the Court of Appeal said s 222 was ‘an integral part...