This was an appeal to the Upper Tribunal following an earlier decision by the First-tier Tribunal that the Appellant had not got a reasonable excuse for appealing out of time.  The Appellant made a voluntary disclosure for overpaid output tax on gaming machine takings following a decision of the ECJ in Edith Linneweber.  The claim was rejected by HMRC, but the Appellant did not enter an appeal as it considered that it had entered a protective claim and that it would wait until the lead case in Rank had been decided and would then ask for payment of the claim if Rank were successful. 

This was not unreasonable as HMRC had previously paid out on protective claims if the taxpayer subsequently won.  However, HMRC changed this policy and would only repay due amounts if an appeal had been entered.

Following the success of Rank the Appellant requested repayment of the overpaid output tax, but this was rejected on the