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Conclusions
Conclusion
For the reasons that we have given, we dismiss the sixth ground of appeal.
Whether the PLN for the excise duty penalty was issued in time
The final issue on which we heard submissions from the parties was whether the PLN issued to Mr Malde in relation to the excise duty penalty was issued in time. This was an issue that the FTT did not need to decide because of its conclusions on the other issues. The FTT chose not to express a view on this issue.
We have dismissed the appeals on Grounds 1, 3 and 6. The successful appeal against this PLN therefore remains undisturbed by our decision. This question is a pure question of law. We do not need to decide this question in order to deal with the appeal against this PLN. We do not do so.
Disposition
For the reasons that we have given above:
we dismiss the appeals on Grounds 1, 3 and 6;
we allow the appeal on Ground 2;
we allow the appeal on Ground 4;
we allow the appeal on Ground 5;
having dismissed the appeals on Grounds 1, 3, and 6, we do not need to decide the issue relating to whether the PLN issued to Mr Malde in relation to the excise duty penalty was issued in time and do not do so.
MR JUSTICE EDWIN JOHNSON
JUDGE ASHLEY GREENBANK
UPPER TRIBUNAL JUDGES
Release date: 07 November 2024
- Heading
- Introduction
- Background
- VAT
- Excise duties
- The FTT Decision
- The Grounds of Appeal
- Ground 1: the burden of proof
- Background
- The FTT Decision
- The parties’ submissions in outline
- The relevant case law principles
- The burden of proof in tax appeals
- The burden of proof in penalty appeals
- DLN
- Penalties under Schedule 24 FA 2007 and Schedule 41 FA 2008
- Ground 2: approach to the issues and evidence
- Background
- The FTT Decision
- Discussion
- Conclusion
- Ground 3: conclusions inconsistent with the underlying evidence
- Background
- The FTT decision
- The parties’ submissions in outline
- Discussion
- Application to the facts of this case
- Conclusion
- Ground 4: breach of “best judgment” requirement
- Background
- Relevant case law principles
- There are two distinct questions which arise where an assessment purports to be made under section 73(1) VATA: first, whether the assessment has been made under the power conferred by that section; an
- The test as to whether an assessment is made to the best of HMRC’s judgment is classically set out in the judgment of Woolf J in Van Boeckel , at page 292e-293a, where he said this
- As to whether an alleged error in an assessment is to be taken as evidence that the assessment was not made to the best of HMRC’s judgment, the relevant question is whether the mistake is consistent w
- There are, however, dangers in an over-rigid adherence to a two-stage approach (i.e. first, validity; second, quantum) to a challenge to a best judgment assessment. The important issue for the tribuna
- The FTT Decision
- The parties’ submissions in outline
- The only relevant test of whether the assessment met the best judgment requirement was whether the mistakes in the assessment were “consistent with an honest and genuine attempt to make a reasonable a
- Application to the facts of this case
- Ground 4
- Ground 5
- Conclusion
- Background
- In relation to Ground 3
- In relation to Ground 4
- In relation to Ground 5 Why, if there was a breach of the best judgement requirement, it rejected the Court of Appeal’s guidance in Pegasus Birds at [23-29] not to automatically set aside the whole assessment but instead to
- If the Tribunal considered Mr Foster’s failure to consider the York Wine bank statements was so “serious or fundamental” that it required the whole assessment to be set aside ( Pegasus Birds [29]), wh
- The parties’ submissions in outline
- Discussion
- Application to the facts of this case
- Conclusions