TC09548 - [2025] UKFTT 00700 (TC)

HMRC’s third ground is that the First Decision contained an error of law because I failed properly to take into account that the burden of proof is on the Appellant in relation to all except the out-of-time issue.

It is not an error of law to hold, as I did in the First Decision, that where HMRC have failed to give reasons, they cannot simply rely on the burden of proof and require the Appellant to provide F&B particulars to “colour in the detail” of HMRC’s own decision.

Moreover, as I pointed out in that Decision, determinations issued under Reg 80 must be “to the best of [HMRC’s] judgement”. In Kingsley Douglas v HMRC [2021] UKUT 0163 (TCC) at [6], the UT agreed that the burden of showing that this was the case rests on HMRC, in other words, it is for HMRC to show they have “fairly consider[ed] all material placed before them and, on that material, come to a decision which is one which is reasonable and not arbitrary as to the amount of tax which is due”, see Van Boeckel v C&E Commrs [1981] STC 290. It is only when they have done so that “the burden passes to the taxpayer to establish on the balance of probabilities that the assessment is excessive”.