TC09655 - [2025] UKFTT 01206 (TC)

One of the points made by Ms Brown in her written and oral submissions concerned prejudice to HMRC of reinstatement as the assessing officer had retired from HMRC and would not, therefore, be available to justify the basis on which she made the assessment. This is highly relevant to the issues in the case since the appellant has challenged the assessment on the basis that it was not made to best judgment, nor was it in time or correctly quantified.

In response Mr Paulin pointed out that the tribunal, at any reinstated hearing, and subject to the appropriate direction having been made that the assessing officer need not attend to support her witness statement, can consider the evidence in that statement and give it such weight as the tribunal thinks fit. He went on to suggest, perfectly correctly, that in fact it was the appellant who might be prejudiced by the assessing officer’s inability to attend, since the appellant would not be able to cross examine her.

The day after we heard the reinstatement application, the judge received a letter dated 3 September 2025 from the appellant’s instructing solicitors in which they identify Ground 1 of the Amended Grounds of Appeal as setting out this challenge to the assessment (i.e. it was not made to best judgement and was not made in time). It went on to state that “In order to narrow the issues and remove any potential prejudice to HMRC, the Appellant hereby formally amends its application for reinstatement to withdraw and/exclude Ground 1. The application to reinstate [the appeal] therefore proceeds only on Grounds 2 and 3, as pleaded at paragraphs 37-73 of the Amended Grounds of Appeal…” (“thebest judgement concession”).

In their view this means that there is no prejudice to HMRC by virtue of the fact that they cannot call the assessing officer and her unavailability is either wholly irrelevant or carries negligible weight in the balancing exercise which we must undertake when exercising our discretion.