[2024] UKUT 00390 (TCC)

I grant permission on this ground on the basis it just passes the arguability threshold and holds a realistic prospect of success. On the substantive appeal the Applicant will need to persuade the UT that the decision in CF Booth (determined by an authoritative panel which the President of the UT Tax and Chancery Chamber chaired) was wrongly decided and that allegations of deliberate conduct in bringing about a loss of tax or deliberate inaccuracies in returns do indeed equate to allegations of dishonesty.

Nonetheless, at this stage the Applicant only need satisfy me that that decision in CF Booth is arguably wrong. In the circumstances in CF Booth where the Supreme Court’s decision in Tooth was not considered by reference to that in Ivey v Genting Casinos (presumably because it was not brought to the UT’s attention) the point is worthy of further argument.

Further I take into account that there is another compelling reason to revisit the issue. Mr Bedenham accepted that this ground, should it have ultimate merit, has serous ramifications for a significant proportion of the appeals that the Tribunal hears and the way in which HMRC presents their cases in many appeals: all those in which the FTT considers allegations of deliberate conduct or inaccuracies on the part of a taxpayer.

Mr Bedenham accepts that the definition of deliberate in Tooth is in the context of a definition as to what constitutes deliberate inaccuracy in returns and only in relation to one specific provision – section 118(7) of the Taxes Management Act 1970. It is not necessarily presented as being a statement of more general application – see the discussion of the Supreme Court in Tooth at [37]-[47], particularly [39]. I pointed out to Mr Bedenham that the statutory context in which the threshold of ‘deliberate’ conduct or inaccuracies applies varies widely. This case is a good example – the word ‘deliberate’ appears in statutes in relation to deliberate conduct in bringing about a loss of tax in relation to discovery assessments and extending time limits in which to make assessments and in relation to statements made to the Revenue for example in penalties for deliberate inaccuracies. The word appears in different contexts for different taxes. The differing context and legislative history of each statute may be relevant to the understanding or construction of its meaning. The range of different contexts may be considered in this appeal.