R&D tax relief •10 min read

Assembly Global Networks Ltd v HMRC

MJ

Matthew Jones ACA CTA

Last reviewed September 2026 · Editorial standards

Tribunal
First-tier Tribunal (Tax Chamber)
Decided
3 April 2024
Judge
Judge Anne Redston

HMRC paid an R&D credit of £304,951.09, then drafted its enquiry letter sixteen days before the window closed. The company said the letter never arrived at its registered office. The tribunal held that the enquiry was validly opened, because service is deemed once a letter has been properly addressed, pre-paid and posted, and the company had not proved non-receipt. The Upper Tribunal later refused permission to appeal. That refusal is not a decision on the merits, and it is worth being precise about what it did and did not do.

What was at issue

Assembly Global Networks Ltd is in telecommunications. On 24 May 2021 it submitted an amended corporation tax return for the year ended 30 September 2020, stating £1.6m of R&D expenditure and claiming a credit of £304,951.09. “In accordance with HMRC’s ‘process now, check later’ approach, on 21 October 2021 they paid AGN the £304,951.09” (paragraphs 1, 2 and 11).

From 31 March 2021 until 7 June 2023 the company’s registered office was 5 Chancery Lane, London, premises occupied by Orega Ltd, which provided registered-office services and had been instructed to forward envelopes to the director at his private address (paragraph 12).

Because the return had been amended on 24 May 2021, both sides agreed the last day for giving a notice of enquiry was 31 July 2022 (paragraph 28). The officer with conduct of the enquiry drafted the letter on Friday 15 July 2022. The single question for the tribunal was whether that letter was “given” to the company by 31 July 2022.

How the dispute got to a hearing

The dates matter, because they are the shape of every dispute of this kind. Amended return 24 May 2021; credit paid 21 October 2021; enquiry letter drafted 15 July 2022 and, as the tribunal found, posted on Monday 18 July. Having had no reply, HMRC issued a Schedule 36 information notice on 16 August 2022, attaching a copy of the enquiry letter, and a penalty for non-compliance on 26 September 2022 (paragraph 3). The director wrote to the officer on 30 September 2022 (paragraph 18).

On 12 April 2023 the company made a late appeal to HMRC against the Schedule 36 notice and the penalty; HMRC refused to admit it on 24 May 2023. On 31 May 2023 the company applied to the tribunal to close the enquiry, on the ground that the enquiry letter had not been validly served, and for permission to make the late appeals (paragraphs 4 and 19). The tribunal directed that service be decided first, as a preliminary issue; the interlocutory arguments that followed are at paragraphs 20 to 24.

The preliminary issue was heard by video on 14 March 2024 before Judge Anne Redston, sitting alone, and released on 3 April 2024. Both sides were represented by counsel.

What each side argued

HMRC relied on the deeming provision in section 7 of the Interpretation Act 1978: the letter had been properly addressed, franked and posted, so service was deemed, and the company had not proved non-delivery (paragraph 5).

The company put three limbs (paragraph 6): HMRC had not proved the letter was posted at all; there had been no “ordinary course” of postal deliveries in the relevant period, so the deeming provision could not operate; and in any event non-receipt had been proved.

The first limb was supported by HMRC’s own guidance. Counsel for the company took the officer to the Enquiry Manual at EM1506. It tells officers it is “best practice to note on Caseflow/SA the date that the notice left the office”, and to telephone the customer or agent (paragraph 36). Where a notice must be issued within one week of the last date, “you should … ensure that the notice is sent via tracked delivery and evidence of this is retained” (paragraph 36). The officer accepted that she had not noted the despatch date, and had not telephoned either the company or its agent before 31 July 2022. She had not used tracked delivery “despite widely publicised problems with Royal Mail”, and had not followed what she agreed would have been good practice (paragraph 37).

The provision the case turns on

For a company tax return, the window is set by paragraph 24 of Schedule 18 FA 1998. Sub-paragraph (4) reads: “If the company amends its return, notice of enquiry may be given at any time up to and including the 31st January, 30th April, 31st July or 31st October”. The window runs to whichever of those dates comes “next following the first anniversary of the day on which the amendment was made”. An amendment made on 24 May 2021 therefore gave a window ending 31 July 2022.

The decision itself works from the self-assessment code: it sets out section 9A(2)(c) TMA 1970 at paragraph 25 and records the amendment as made under section 9ZA, where a company amends its return under paragraph 15 of Schedule 18. The two are in the same terms, and the 31 July 2022 deadline was common ground (paragraph 28), so nothing turned on it.

Service is governed by section 7 of the Interpretation Act 1978, set out at paragraph 29:

“Where an Act authorises or requires any document to be served by post (whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Section 1139 of the Companies Act 2006 allows service on a company by sending a document by post to its registered office (paragraph 27).

What the tribunal decided

The judge set out four steps (paragraph 30): was the letter properly addressed, pre-paid and posted; if so, when; should the deeming provision be disapplied; and had the company proved non-delivery.

On step one, the finding rested on system evidence: the print provider’s report, the completed “envelope” and “tariff name” columns, and the presumption of regularity (paragraph 41). It was reinforced by the fact that the copy letter sent to the company’s agent in the same print job was received (paragraphs 57 and 66). “I find that the Enquiry Letter was properly addressed and pre-paid, and was despatched to Orega by post” (paragraph 67).

On steps two and three the company won ground. A red weather warning, pandemic-related staff absence and managers working to rule meant that until 23 July 2022 there was no “normal course of post” (paragraph 83). The judge found there was “no ‘ordinary course of post’” between the date of posting and that date (paragraph 85). But by Monday 25 July “Royal Mail were again committing to deliver second class post by the normal time limits” (paragraph 84), and the letter was still in the system. Applying Fowler and Vermilion, the purpose of the deeming provision “is to avoid the sender having to prove service on an item by item basis” (paragraph 89). Disapplying it would therefore produce no unjust or absurd result (paragraph 90). “It would be an error of law to disapply the deeming provision and instead carry out a factual assessment as to whether or not the Enquiry Letter had been delivered within three working days” (paragraph 94). That is because “the whole purpose of IA s 7 is to remove the need for such an exercise” (paragraph 94). The letter was deemed delivered by 28 July 2022 (paragraph 95).

On step four, what the company had to prove was non-receipt at the registered office — by Orega, not by the director (paragraph 99). The judge accepted that the director himself never received the original letter (paragraph 61), but Orega’s own emails did not establish non-receipt (paragraph 105), and he “had ‘no way of knowing’ what went on in that office” (paragraph 109). “AGN have failed to prove that the Enquiry Letter was not received by Orega” (paragraph 113). The preliminary issue was decided in HMRC’s favour (paragraph 115).

What the Upper Tribunal did, and did not, decide

The FTT refused permission to appeal on 1 July 2024. The company renewed the application to the Upper Tribunal on 31 July 2024; Judge Rupert Jones refused it on the papers on 7 October 2024, and after an oral reconsideration hearing on 12 December 2024 refused it again. That decision notice is signed 16 December 2024 and carries the citation [2025] UKUT 23 (TCC) — the year in the citation and the date of signature genuinely differ, and the published record shows the same pairing.

The disposal, at paragraph 39, is one sentence: “Permission to appeal is refused on all grounds because they do not hold realistic prospects of success.”

That is the whole of it. The Upper Tribunal did not determine an appeal, did not decide whether the First-tier Tribunal was right, and made no ruling about enquiry windows, deemed service or R&D relief. Permission is granted where the grounds “disclose an arguable error of law … which is material to the outcome of the case” (paragraph 9); refusal means only that the grounds did not reach that threshold. Because the challenge was to findings of fact, the applicant had to identify all the relevant evidence and show the finding was one the tribunal was not entitled to make. That is a high threshold, and the authorities for it are set out at paragraphs 12 and 13. Judge Jones put the limit of his own role plainly: “Irrespective of whether I would or would not have made the same findings of fact, these findings were available to the FTT to make on the evidence before it. I could not interfere with the findings on the simple basis that I disagreed with them” (paragraph 37).

No Upper Tribunal decision determining an R&D tax relief appeal appears on the published record as at the date of this review. This is the closest the register comes, and it is a refusal of permission for an appeal to be brought, not a decision on one.

What it changes for a claim being prepared now

  • Work out your own last date and diarise it. Under paragraph 24(4), an amended return opens a fresh window running to the quarter day after the first anniversary of the amendment. A claim filed by amendment in, say, February is exposed until 30 April the following year.
  • Payment is not acceptance. The credit here was paid in October 2021 and challenged nine months later. We cover that separately in does HMRC paying my claim mean it was approved?
  • Make the registered office work. Service is good when the letter reaches the registered office. If that is an agent, a serviced office or a formation company, the forwarding arrangement is the weak point — and what the director did or did not receive is the wrong question.
  • Proving non-receipt is your burden, and it is a hard one. Evidence about the director’s post will not do it. What is needed is evidence from whoever holds the registered office about what arrived and when: an inbound post log, dated and kept.

Where it sits against the other decisions

Judge Redston also decided Flame Tree Publishing. This decision belongs with the procedural rather than the technical group in the register: it is about how an R&D year is opened, not about what qualifies. Read alongside Tills Plus, which settles what HMRC may argue once the year is open, it maps the front half of an enquiry. Our guide to HMRC enquiries into R&D claims sets out what follows, and the rest of the decisions sit in our register of R&D case law.

Has it been appealed?

It was, and the road ended. The Upper Tribunal’s refusal of permission on 16 December 2024 is the last published step on the preliminary issue.

The substantive appeal was not determined by either decision. The First-tier Tribunal recorded at paragraph 116 that directions in the appeal and in the company’s two stayed appeals were being issued separately. No further published decision in the case appears on the record as at the date of this review.

HMRC has not changed its published guidance as a result. The passage of EM1506 quoted by the tribunal is still there, although it has since been amended to reflect Royal Mail’s change to its second-class service from 28 July 2025.

The First-tier Tribunal decision binds only the parties and sets no precedent, and a refusal of permission to appeal sets none either.

Sources

First-tier Tribunal decisions bind only the parties to them and set no precedent. This entry describes the decision as it stood at the review date above, as general information rather than advice on your circumstances — see our terms. For an answer on your own facts, talk to us.