England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE COOK)

		Royal Courts of Justice Strand London, WC2
		23 June 2004

Wednesday, 23 June 2004

1. LORD JUSTICE WALLER: I will ask Lord Justice Jonathan Parker to give the first judgment.
2. LORD JUSTICE JONATHAN PARKER: This is an appeal by Mr Gurcharan Singh Ahluwalia, the defendant in the action, against an order dated 24 November 2003 made by His Honour Judge Cook, in the Reading County Court, dismissing the appellant's appeal for an order dated 13 January 2001 made by District Judge Burgess, whereby the district judge entered judgment in favour of the Revenue, the claimant in the action, in the total sum of what is now agreed to be £125,878.62 in respect of arrears of income tax and national insurance contributions, together with interest.
3. Permission for a second appeal was refused on paper by Carnwath LJ on 23 January 2004, but was granted by Jacob J at an oral hearing on 19 February 2004.
4. The background facts are, in summary, as follows.
5. On 7 February 1997 the Revenue commenced an inquiry into the appellant's tax affairs. The enquiry, which was conducted on behalf of the Revenue by Mr Stuart Mee, an Inspector of Taxes for the Reading District, resulted in amended assessments being raised on the appellant pursuant to sections 34 and 36 of the Taxes Management Act 1970 ("the 1970 Act") in respect of arrears of income tax under Schedule D, and National Insurance Contributions. The amended assessments related to the tax years 1991/1992 through to 1994/1995. The appellant appealed the amended assessments to the General Commissioners. At the same time, he appealed against assessments in relation to the years 1995/1996 and 1996/1997. The appeals were fixed to be heard on 28 July 1999.
6. The appellant's regular accountant was a Mr Gupta of Messrs Paul & Co, Accountants. However, on 22 July 1999 Mr Neil Macpherson, a tax partner in another firm of accountants, Messrs Williams Allan, telephoned Mr Tyler of the Revenue to inform him that he had been retained by the appellant in relation to the appeals to the General Commissioners.
7. On 26 July 1999 a meeting took place between Mr Macpherson, Mr Tyler and Mr Mee, at which it was agreed that the forthcoming hearing on 28 July 1999 should be adjourned in order to allow Mr Macpherson sufficient time to acquaint himself fully with the matter.
8. On 20 September 1999 Mr Mee wrote directly to the appellant expressing concern as to the lack of progress in the matter. He said that he had only agreed to the appeals being adjourned on the basis of an assurance given by "your accountant, Mr Macpherson of Williams Allan", and that from conversations he had had with Mr Macpherson it was clear that the appellant had "engaged him to resolve this matter as expediently [he may have meant 'expeditiously'] as possible". The appellant did not respond to that letter.
9. The adjourned hearing of the appeals was fixed to take place on 10 October 1999. However, that hearing was also adjourned at Mr MacPherson's request. A third hearing date of 24 November 1999 was also vacated in order to allow the parties further time for negotiations. A fourth hearing date was fixed for 4 May 2000.
10. On 23 February 2002 Mrs Balchin, the clerk to the General Commissioners, wrote to the appellant inviting him to attend the adjourned hearing on 4 May 2000.
11. In the event, the appellant did not personally attend that hearing, but Mr Macpherson attended it on his behalf and requested a yet further adjournment upon the footing that he still had not had sufficient time to prepare the appeals. The General Commissioners granted a final adjournment of one week in order to allow negotiations to take place. Following that hearing a meeting was arranged between Mr Mee and Mr Macpherson on 8 May 2000.
12. The meeting on 8 May 2000 was attended by (among others) Mr Macpherson, Mr Mee and Mr Mee's colleague, Mr Austin Wyley. Mr Mee's attendance note of that meeting records that a final offer was put by Mr Macpherson of £160,000 as the appellant's total tax liability for the years in question, although Mr Macpherson made it clear that the offer was made without instructions and that he would telephone the Revenue the following day to confirm whether or not the appellant was willing to agree that figure. For his part, Mr Mee was willing to agree the that figure, but he informed Mr Macpherson that he would be taking the appeals to the General Commissioners in any event for formal determination, just in case negotiations failed. Mr Mee's attendance note of the meeting on 8 May 2000 is before us. In the penultimate paragraph of his attendance note Mr Mee says this:

"Further discussion ensued over amounts of offers which were systematically rejected by either Mee or Wyley. A final offer of £160,000 was made by NM [that is Mr Macpherson] to be paid all in one lump sum. NM explained this was far in excess of what Mr Ahluwalia and he had discussed. However, in view of the situation NM would recommend acceptance to Mr Ahluwalia. SJM [that is Mr Mee] said that he would be taking the open appeals to the Commissioners for determination in the sum of £160,000 for tax, NIC [National Insurance Contributions] and interest just in case negotiations failed. NM agreed with this course of action. SJM said he would prepare the figures and send them to NM."

13. According to a witness statement made by Mr Wyley, in opposition to an application by the appellant to set aside a statutory demand served on him by the Revenue (to which I shall refer in due course), on the following day, 9 May 2000, Mr Macpherson telephoned Mr Wyley saying that he had spoken to the appellant and that the appellant was agreeable to the figure of £160,000 as representing his total tax liability for the years in question. Mr Wyley's attendance note of that telephone call is before us. In that attendance note he says this:

"Macpherson telephoned Wyley following their meeting yesterday, 8 May 2000.

Macpherson said that he had now spoken now spoken to Ahluwalia and Ahluwalia had given his agreement to the settlement figure of £160,000. Wyley said that he was pleased to hear this and obviously matters now needed to be formalised. Macpherson agreed and said that he would be sitting down with Ahluwalia next week to discuss how he was going to fund the settlement and that he would also speak to Stuart Mee next week to discuss this further.

Wyley said that Mr Tyler had spoken to the Clerk to the Commissioners, Mrs Balchin, earlier this morning to advise her of the position and the Commissioners had agreed to determine the figures either in writing or at the meeting on 26 May - Macpherson acknowledged this.

Macpherson said that he was pleased that a negotiated settlement had been reached. Wyley agreed with this and thanked Macpherson for phoning."

14. On 22 May Mr Mee wrote to Mr Macpherson setting out the detailed figures which he would be asking the General Commissioners to confirm at the forthcoming hearing on 26 May 2000, and stating that the net effect of those figures would be to "bring into charge tax, NIC and interest totalling £159,658.98 assuming a payment dated 1 August 2000". The figures in question related to the appellant's taxable income for the years 1991/1992 through to 1995/1996, and to his tax liability for the year 1996/1997. In the course of his letter Mr Mee said this:

"The net effect of my proposed figures is to bring into charge Tax, NIC and interest totalling £159,658.98 assuming a payment date of 1 August 2000. However, these assessments will only be brought into charge should your client not sign a letter of offer. If that situation arose, I will be seeking penalties based on those amounts. As this fits in with the figures that we agreed at our meeting I presume you will not be attending the meeting. I intend to given the Commissioners a synopsis of the case to date. Mrs Balchin will also be present to advise the Commissioners, should they not be the same, of the outcome of our meeting on 4 May."

15. At the hearing on 26 May 2000 Mr Mee invited the General Commissioners to make a determination in accordance with the figures which he had previously supplied to Mr Macpherson; and the General Commissioners duly did so. Neither the appellant nor Mr Macpherson attended that hearing.
16. Notice of the General Commissioners' determination, together with the detailed figures, was (as the appellant accepts) given to him by Mrs Balchin in a letter dated the same day, 26 May 2000. In a later letter (to which I shall refer in due course) Mrs Balchin has stated that she enclosed with that letter a document setting out the appellant's rights of appeal against the General Commissioners' determination.
17. Thereafter, notices of amended assessment, coupled with a notice to pay, were duly issued by the Revenue.
18. On 8 August 2000 the appellant wrote to the Revenue stating that Mr Gupta disagreed with the figures as determined by the General Commissioners. In the concluding paragraph of his letter, the appellant said this:

"The Accountants in Windsor 'Williams Allan' (Mr Neil Macpherson) I have appointed him to act on my behalf but do not have any money to pay them and yet again have to borrow."

19. On the following day, 9 August 2000, Mr Macpherson wrote to the Revenue advising them that the current position was that the appellant did not have sufficient cash deposits to make immediate payment in the full settlement of his outstanding tax liabilities. The letter went on to inform the Revenue that the appellant was reviewing his position with the benefit of advice from his solicitors and from Williams Allan, and that it was expected that within the next 30 days a concrete proposal would be put forward for settlement of the outstanding liabilities. In the meantime, Mr Macpherson enclosed three cheques as what he described as "small payments on account".
20. On 18 September 2002 the Revenue issued proceedings in the Reading County Court for recovery of the tax liabilities set out in the Particulars of Claim, which included the tax years covered by the General Commissioners' determination and the tax liability for the years 1998/1999 and 1999/2000.
21. On 19 October 2000 the appellant filed a Defence to the proceedings, contending that the appeals to the General Commissioners were still live (i.e. that they had not as yet been determined), and that the amount claimed in the proceedings differed from "the amount of tax that was proposed by way of settlement to the Inspector of Taxes at a sum of £158,658.98".
22. On 2 January 2001 a preliminary hearing took place before District Judge Burgess. Before the district judge at that hearing were certificates issued by the Revenue pursuant to section 70 of the 1970 Act certifying the amount of tax which was due in respect of each of the years in question.
23. Section 70(1) of the 1970 Act provides as follows:

"Where tax is in arrear, a certificate of the inspector or any other officer of the Board" [that is, the Board of Inland Revenue] that tax has been charged and is due, together with a certificate of the collector that payment of the tax has not been made to him, or, to the best of his knowledge and belief, to any other collector, or to any person acting on his behalf or on behalf of another collector, shall be sufficient evidence that the sum mentioned in the certificate is unpaid and is due to the Crown; and any document purporting to be such a certificate as is mentioned in this subsection shall be deemed to be such a certificate until the contrary is proved."

24. At the hearing on 2 January 2001 the district judge entered judgment in favour of the Revenue for the sums claimed with interest. A note of his judgment which is included in the documentation before us contains the following:

"A preliminary hearing was fixed before me on 2 January 2001.

At that hearing a representative of the Collectors office was present together with a representative from the recovery section.

Certificates were produced to me under s 70 [of the] Taxes Management Act 1970. These are 'sufficient' evidence that the sums are due & unpaid.

Whilst the term 'sufficient' falls a little short of the term 'conclusive' it is not enough for the Defendant to oppose by [alleging] that the money is not due. This is why we do not have to fix trials. It was the intention of the legislature that the tax legislation provided an 'appeal' system through the General & Special Commissioners. The process in the County Court was an enforcement one only.

My view is that unless the Defendant can demonstrate a serious irregularity in the appeal process then the Court is bound by the s 70 certificate. Nothing in the 'Defence' assisted the Defendant. Other than the [assertion] that the Assessment were the subject of appeal to the Commissioners.

However I was given oral evidence & shown documents which confirmed that the appeal process had already taken place & the assessment had been confirmed.

The Solicitor on behalf of the Defendant has suggested that the Defendant was unaware of any hearing & that he had not attended.

I was satisfied on the evidence however that the Defendant at all relevant times had had accountants aiding him and they had been given notice of the hearings & there had been correspondence concerning the hearing."

25. On 15 January 2001 the appellant's then solicitors, Messrs EJ Winter & Son wrote to the General Commissioners applying for a review of their determination of 26 May 2000.
26. On 21 January 2001 His Honour Judge Catlin refused permission to appeal on paper against the order made by District Judge Burgess on 2 January 2001.
27. On 26 January 2001 Mrs Balchin, on behalf of the General Commissioners, replied to EJ Winter & Son reciting the history of adjourned hearings and referring to Mr MacPherson's involvement in the hearings on behalf of the appellant. She further stated that she had personally written to the appellant on the date that the appeals were determined advising him of the determination and enclosing a copy of a sheet containing information as to (among other things) the appellant's rights of appeal. In the course of her letter she said this:

"... I heard from the Revenue that agreement had been reached on 8th May following a meeting between Mr Macpherson and Mr S Mee of the Revenue and therefore the adjourned meeting could be cancelled. I did telephone Mr Macpherson for his agreement which was given.

When the Commissioners next met for an ordinary session on 26th May, they were asked to confirm the agreed figures as the case was technically only adjourned. This they did. I wrote to Mr Ahluwalia on the same day and enclosed a sheet setting out his rights (I enclose a copy for your information). The Commissioners were not, in the event, asked to deliberate on the case. Mr Macpherson was aware of the date of the meeting. The agreed sum is therefore due for payment of tax.

Mr Ahluwalia was informed of his rights of appeal but, in practice, as the figures had been agreed there would not have been a point of law to appeal against. Mr Macpherson agreed figures on behalf of his client and if there is any dispute relating to this agreement then he should look to Mr Macpherson.

I regret that there is nothing I can do to help on this occasion. If you wish to discuss the mater further please give me a ring."

28. On 6 September 2001 the Revenue served a statutory demand on the appellant based upon the judgment entered by District Judge Burgess. On 21 September 2001 the appellant applied to set aside the statutory demand. In his witness statement in support of that application the appellant confirms that he had instructed Mr Macpherson to "deal with this matter", but he denies that Mr Macpherson had any authority from him to conclude a binding agreement in relation to his tax affairs with the Revenue.
29. On 25 May 2002 the appellant issued an application in the county court requesting an extension of time in which to apply for an oral hearing to reconsider His Honour Judge Catlin's refusal of permission to appeal on paper, and also seeking permission to appeal and permission to adduce further evidence in support of the appeal. That application was heard by His Honour Judge Morgan on 14 November 2002. He granted permission to appeal out of time and he also granted permission for the appellant to adduce new evidence in support of the appeal.
30. The appellant appealed on two grounds. First, that the district judge was wrong to treat the section 70 certificates as precluding the appellant from challenging the amounts alleged to be due. Second, that he was wrong to hold that he was bound by the General Commissioners' determination, when the appellant was seeking a review of the determination.
31. The appeal was heard by His Honour Judge Cook on 23 October 2003. The judge handed down judgment on 24 November 2003, dismissing the appeal. It is his order which is the subject of the present appeal.
32. As noted earlier, permission for a second appeal was granted by Jacob J on 19 February 2004 on an oral application.
33. I turn now to the judge's judgment. Addressing the appellant's second ground of appeal, the judge referred to sections 46(2) of the 1970 Act, which provides (so far as material) as follows:

"Save as otherwise provided in the Taxes Acts or in the regulations under 56B of this Act, the determination of the General Commissioners... in any proceedings under the Taxes Acts shall be final and conclusive."

The judge concluded that there had been such a determination in the instant case. The judge then referred to paragraph (1) of regulation 17 of the General Commissioners' (Jurisdiction and Procedure) Regulation 1994 (SI 1994 No.1812) ("the 1994 Regulations"), which confers a limited discretionary power on the General Commissioners to review, set aside or vary a final determination. Paraphrasing paragraph (1) of the regulation, the discretionary power is exercisable where the General Commissioners are satisfied that the determination was wrongly made as a result of administrative error; where relevant documents had been sent but had not been received; or (by subparagraph (b)) where a party who was entitled to be heard at the hearing but who failed to appear or to be represented had good and sufficient reason for failing to appear or to be represented.

34. Paragraph (2) of regulation 17 lays down a time limit of 14 days from the date of determination for applications under paragraph (1). The judge in the instant case noted that the appellant's application was made some eight months after the date of the determination. He went an to refer to Mrs Balchin's letter dated 26 January 2001, stating that he found it "incredible" that almost three years after the determination it should be suggested that the General Commissioners were still considering whether to review the determination.
35. The judge cited IRC v Pearlberg [1953] 34 TC 57 and IRC v Soul [1976] 51 TC 86 as authority for the proposition that the statutory machinery for an appeal from the General Commissioners is exclusive machinery; and Shamash v IRC [2002] BPIR 189 as authority for the proposition that, subject to an appeal under the statutory machinery, it was not open to the courts to consider whether the General Commissioners' determination was correct.
36. The judgment continues as follows:

"A number of arguments have been propounded on behalf of the appellant, some more attractive than others, but none of them can confer on this court jurisdiction it does not have. These arguments include the proposition that even if the figures had been agreed by the accountant (the appellant disputes that they were agreed, or, if they were, that the accountant had authority to agree them, even ostensible authority in the absence of the appellant's signature of a Form 64-8 authorisation) their rubber-stamping by the General Commissioners could not amount to a determination for the purposes of the Act. Such a consequence would of course undermine all assessments in which the Board may a finding based on agreed figures. The appellant was not given the requisite notice of his right to appeal, and my attention was persuasively drawn to discrepancies and inconsistencies on both sides of the correspondence between the accountant and the respondents. However, under the statutory framework, these were all matters for the General Commissioners.

The first ground of appeal is that the district judge was wrong to find that the section 70 certificates precluded him from looking at other evidence. This ground also fails, for the reasons given by the district judge, which I affirm and adopt."

The judge accordingly dismissed the appeal.

37. The appellant appeals to this court on four grounds. First, that the district judge was wrong to regard himself as bound by the section 70 certificates, especially since, even on the district judge's own test, there was a serious procedural irregularity in the appeal process and in the General Commissioners' refusal to review the determination. Second, that there was no "determination" by the General Commissioners, in that there had not been any hearing on the merits, and that accordingly the appeals to the General Commissioners remained "live". Third, that there was no agreement between the appellant and the Revenue, since Mr Macpherson had no authority to agree the figure of £160,000. And fourth, that in any event the appellant was not advised of his rights of appeal, contrary to regulation 16(5) of the 1994 Regulations.
38. By a Respondent's Notice the Revenue invites us to uphold the judge's order on two additional grounds. First, that the appellant was notified of his right of appeal, as Mrs Balchin asserts; and in any event, even if he was not, the General Commissioners' determination remains binding on him and is not open to challenge in the present proceedings. Second, that before the judge counsel for the Revenue was fully prepared to address detailed submissions on the figures but in the event was not required to do so; and that in any event the section 70 certificates were sufficient evidence of the sums claimed and were consistent with the General Commissioners' determination. In support of that additional ground, the Revenue has provided us with copies of the section 70 certificates together with four copies of Notices of Assessment which were sent to the appellant in advance of the hearing before the judge and which were referred to by the appellant's counsel at that hearing.
39. I turn now to the arguments addressed to us on this appeal. For the appellant, Mr Charles Douthwaite relies on Mrs Balchin's statement in her letter dated 26 January 2001 that "the Commissioners were not, in the event, asked to deliberate on the case" for the submission that what occurred before the Commissioners was not a "determination", since the Commissioners were told, incorrectly, that the figures have been agreed between the parties. He submits that the General Commissioners were misled in that Mr Mee on behalf of the Revenue told them that the figures has been agreed when they had not, and that it was on that basis that the decision of the General Commissioners was made. In other words he submits that the General Commissioners' decision was procured by mistake. He submits that the judge ought to have made findings on the issue as to whether an agreement had been reached which was binding on the appellant, particularly since the district judge had impliedly concluded that there was no "serious procedural irregularity" in the proceedings before the General Commissioners. Mr Douthwaite goes so far as to submit that, given the appellant's evidence that Mr Macpherson had no authority to conclude a binding agreement with the Revenue on his behalf, the only conclusion which is open is that Mr Macpherson must have been lying when he told Mr Mee in his telephone call of 9 May 2000 that Mr Ahluwalia had agreed the figures. Mr Douthwaite even asserts that Mr Macpherson's alleged lack of authority was - and I quote from his written skeleton argument - "well known to the Inspector of Taxes". He also submits that the Revenue never relied on the purported agreement (since no written agreement was ever signed), but instead "wrongly procured" section 70 certificates to be issued.
40. In his written skeleton argument Mr Douthwaite relies on the judge's statement that "the appellant was not given the requisite notice of his right of appeal", submitting that this omission constitutes a breach of regulation 16(5). However, Mr Douthwaite did not press this point in his oral submissions. Nor did Mr Douthwaite pursue any argument based on alleged discrepancies in the figures.
41. For the Revenue, Miss Catherine Addy (in her skeleton argument) refers us to the relevant provisions of the 1970 Act in support of her submission that the statutory process for appeals against determinations by the General Commissioners is an exclusive one. She submits that the jurisdiction conferred on the High Court by section 56 of the 1970 Act to "determine any question or questions of law arising on a case stated and transmitted to the High Court" is the only relevant jurisdiction conferred on the High Court in relation to such determinations. She submits that no jurisdiction whatever is conferred on the County Court which would permit it to challenge or otherwise question such a determination. In support of this determination she referred us to section 30A(4) of the 1970 Act, which provides that an assessment, notice of which has been given to the taxpayer "shall not be altered except in accordance with the provisions of the Taxes Acts"; she also relies on section 46(2) quoted earlier in this judgment.
42. Finally, so far as the 1970 Act is concerned, she referred us to sections 66(1) and 68(1). Section 66(1) provides as follows so far as material:

"[Tax due and payable ... may, in England and Wales ... without prejudice to any other remedy, be sued for and recovered from the person charged therewith as a debt due to the Crown by proceedings in a county court commenced in the name of a collector."

Section 68(1) provides as follows:

"Any tax may be sued for and recovered from the person charged therewith in the High Court as a debt due to the Crown, or by any other means whereby any debt of record or otherwise due to the Crown can, or may at any time, be sued for and recovered, as well as by the other means specially provided by this Act in levying the tax."

In support of her submission that the statutory appeal process is an exclusive process, Miss Addy cites IRC v Soul, IRC v Pearlberg and IRC v Aken [1990] 1 BPIR 189.

43. She further submits that if the courts were to decline to enforce the General Commissioners' determination, the Revenue would be left with no way of recovering the outstanding tax from the appellant, since there is no basis on which the Revenue could invite the General Commissioners to review the determination.
44. As to the factual allegations made on behalf of the appellant (should it be necessary for the Revenue to address them), Miss Addy submits that it is plain from the contemporary documentation (including the appellant's own letter dated 8 August 2000) that Mr Macpherson had the appellant's authority to act for him on the appeals to the General Commissioners, and to reach an agreement binding on the appellant with the Revenue as to the amount of the Appellant's tax liability. In any event, she submits, the General Commissioners' confirmation of the figures put forward by the Revenue on 26 May 2000 was nevertheless a "determination" for the purposes of section 46(2) of the 1970 Act.
45. She also relies on Mrs Balchin's statement in correspondence that the appellant was duly notified of his rights of appeal.
46. In the first place, I accept Miss Addy's submission that the statutory machinery for appeal against a notice of assessment is exclusive machinery. Bridge LJ (citing Pearlberg) said as much in Soul (at p87 G-H). Hence the district judge and the judge were right to conclude that the county court has no appellate jurisdiction in respect of determinations of the General Commissioners.
47. In the second place, I also agree with Miss Addy that the district judge was bound by the figures in the section 70 certificates. It is not necessary in the instant case to address the question whether, and if so to what extent, "sufficient evidence" (the expression used in section 70) differs from "conclusive evidence", since there is no basis on which it could be suggested that in the instant case the evidence of the section 70 certificates was less than "sufficient". In particular, Mr Douthwaite's submission that there was a serious procedural irregularity in the proceedings before the General Commissioners, based upon Mr Macpherson's alleged lack of authority, seems to me to be entirely misconceived. As Mr Mee made clear to Mr Macpherson at the meeting on 8 May 2000, he would be inviting the General Commissioners to make a formal determination in any event, just in case the negotiations broke down. Moreover, it is clear that Mr Macpherson was made fully aware by Mr Mee that the adjourned hearing was due to take place on 26 May 2000. It is also to be noted that, notwithstanding that the appellant was notified of the determination by the letter from Mrs Balchin dated the same day, he raised no objection to the determination until 8 August 2000 - and his objection then was that Mr Gupta disagreed with the figures as determined. Moreover, in that same letter he stated in terms that Mr Macpherson was acting on his behalf, and indeed the letter indicates that a copy of it was sent to Mr Macpherson.
48. I also reject Mr Douthwaite's submission that the fact that the General Commissioners "were not asked to deliberate on the case", to use Mrs Balchin's words, means that their confirmation of the figures put forward by the Revenue was not a "determination". Plainly it was a "determination". In Hallamshire Industrial Finance Trust Ltd v IRC [1979] 2 All ER 433, Browne-Wilkinson J had this to say as to the meaning of "determination" in this context (at p438 C-E):

"... the function of the commissioners is, in my judgment, to determine the issues raised on the appeal... Once the actual issues have become defined and the parties have had a full opportunity to argue all the points open to them on the notice of appeal, the commissioners give their decision on the issues actually raised. Having done so, in my opinion they have in any ordinary sense of the words 'determined the appeal'."

49. In the instant case the General Commissioners did not deliberate on the issues raised by the appellant's appeal because neither the Revenue nor Mr Macpherson asked them to do so. Their decision was one which Mr Macpherson (on behalf of the appellant) did not oppose, although he had (in the words of Browne-Wilkinson J) a full opportunity to do so. The fact that the decision was not opposed on behalf of the taxpayer cannot deprive it of its status as a determination for the purposes of the Taxes Act. Moreover, even if Mr Macpherson's non-opposition was contrary to his instructions from the appellant (and on the available evidence it is extremely difficult to see how it could have been) that is not a matter which can affect the Revenue; still less can it alter the nature of the determination. Nor, in my judgment, is the nature of the determination in any way affected by the fact that Mr Mee told the General Commissioners (if he did) that the figures had been agreed with the appellant when, let it be assumed, in fact they had not.
50. Further, even if (contrary to Miss Balchin's assertion) the appellant was never formally advised of his right of appeal, that might provide a basis for inviting the General Commissioners to exercise their discretionary power to review the determination on the footing that an administrative error had occurred; it could not, in my judgment, form the basis of any challenge to the determination in these proceedings.
51. Nor, in my judgment, is there any substance in the suggestion made by Mr Douthwaite to the judge that the determination of the General Commissioners is in some way still open to review. I agree with the judge that such a proposition is simply "incredible", given the terms of Mrs Balchin's letter dated 26 January 2001.
52. For those reasons, therefore, I would dismiss this appeal.
53. LORD JUSTICE WALLER: I agree.

(Appeal dismissed; costs summarily assessed at £5,735).