UT (Tax & Chancery) UT/2023/00099 - [2025] UKUT 00013 (TCC)

In deciding whether or not to restore goods seized by HMRC or the Border Force, the FTT has the power to take into account all the facts, including those not before the decision maker, see Gora v HMRC [2003] EWCA Civ 525. This is often referred to as “the Gora principle”.

In his skeleton argument for the FTT, Mr Brown had accepted that the Gora principle did not apply to the Appellant’s case. He said that “if the FTT decides its jurisdiction is supervisory, the Appellant can only rely upon evidence that was before Officer Mills when he made his decision”. The Gora principle was thus not considered by the FTT, see [49].

When the Appellant applied to the FTT for permission, it did so on three grounds, one of which read:

“In respect of the decision that the Appellant cannot rely upon invoices not ‘produced’ to HMRC, this conflicts with CNM Estates (Tolworth) Ltd v Revenue and Customs [2019] UKFTT 45 (TC) [“CNM Estates”], which is accepted was not brought to the attention of the FTT.”

The case of CNM Estates concerned an appeal against security for VAT. At [31] the FTT summarised the law as follows (our emphasis):

“…it is well established that we can only consider the facts as they were at the time the decision was taken. We cannot take into account subsequent events. We can consider facts which existed at the time the decision was takenbut which were ignored by HMRC, either at the time of the decision or at the time of the subsequent review, but we cannot take into account new facts.”

Permission to appeal on that ground was refused by the FTT and it was not pursued at the UT. Nevertheless, in his skeleton argument, Mr Brown submitted that:

“the Appellant will rely upon Bluechipworld Sales & Marketing Ltd v. HMRC
[2019] UKFTT 0705 (TC) [“Bluechipworld”] at para. 31 as authority that in exercising its supervisory jurisdiction, the FTT can take into account all the facts that existed at the date of the assessment regardless of whether or not they were known to the decision maker i.e. that the Appellant had in its possession valid VAT invoices when it submitted its VAT returns.”

In Bluechipworld at [20], the FTT referred to CNM Estates, and said at [31]:

“We reject HMRC’s submission that in exercising its supervisory function, the Tribunal is able to take into account only those facts known to the decision maker. In our view, the Tribunal can take into account all facts that existed as at the date of the decision under appeal (regardless of whether or not they were known to the decision maker).”

That passage is, in terms, a restatement of the Gora principle. However:

We agree with Mr Watkinson that as the Appellant did not have permission to put forward this ground, we have no jurisdiction to consider it. We also observe that Mr Brown’s attempted submission on the Gora principle conflicts with the ratio of both Boyce and Scandico.