“provided that where the Commissioners so direct, either generally or in relation to particular cases, a claimant shall hold or provide such other evidence of the charge to VAT as the Commissioners may direct.”
“73. Failure to make returns etc. (1) Where a person has failed to make any returns required under this Act (or under any provision repealed by this Act) or to keep any documents and afford the facilities necessary to verify such returns or where it appears to the Commissioners that such returns are incomplete or incorrect, they may assess the amount of VAT due from him to the best of their judgment and notify it to him. (2) In any case where, for any prescribed accounting period, there has been paid or credited to any person— (a) as being a repayment or refund of VAT, or (b) as being due to him as a VAT credit, an amount which ought not to have been so paid or credited, or which would not have been so paid or credited had the facts been known or been as they later turn out to be, the Commissioners may assess that amount as being VAT due from him for that period and notify it to him accordingly. (3) …… (4) …… (5) …… (6) An assessment under subsection (1), (2) or (3) above of an amount of VAT due for any prescribed accounting period must be made within the time limits provided for in section 77 and shall not be made after the later of the following— (a) 2 years after the end of the prescribed accounting period; or (b) one year after evidence of facts, sufficient in the opinion of the Commissioners to justify the making of the assessment, comes to their knowledge, but (subject to that section) where further such evidence comes to the Commissioners’ knowledge after the making of an assessment under subsection (1), (2) or (3) above, another assessment may be made under that subsection, in addition to any earlier assessment.”
“77 Assessments: time limits and supplementary assessments. (1) Subject to the following provisions of this section, an assessment under section 73, 75 or 76, shall not be made— (a) more than 3 years after the end of the prescribed accounting period or importation or acquisition concerned, or (b) in the case of an assessment under section 76 of an amount due by way of a penalty which is not among those referred to in subsection (3) of that section, 3 years after the event giving rise to the penalty. (2) Subject to subsection (5) below, an assessment under section 76 of an amount due by way of any penalty, interest or surcharge referred to in subsection (3) of that section may be made at any time before the expiry of the period of 2 years beginning with the time when the amount of VAT due for the prescribed accounting period concerned has been finally determined. (2A) Subject to subsection (5) below, an assessment under section 76 of a penalty under section 65 or 66 may be made at any time before the expiry of the period of 2 years beginning with the time when facts sufficient in the opinion of the Commissioners to indicate, as the case may be— (a) that the statement in question contained a material inaccuracy, or (b) that there had been a default within the meaning of section 66(1), came to the Commissioners’ knowledge. (3) In relation to an assessment under section 76, any reference in subsection (1) or (2) above to the prescribed accounting period concerned is a reference to that period which, in the case of the penalty, interest or surcharge concerned, is the relevant period referred to in subsection (3) of that section. (4) Subject to subsection (5) below, if VAT has been lost— (a) as a result of conduct falling within section 60(1) or for which a person has been convicted of fraud, or (b) in circumstances giving rise to liability to a penalty under section 67, an assessment may be made as if, in subsection (1) above, each reference to 3 yearswere a reference to 20 years. ……”
“failed to correctly operate the self-billing procedure. Consequently it would be inappropriate for HMRC to consider applying its discretion under the Statement of Practice”
“The appellants incurred VAT on purchases from suppliers who either were or ought to have been registered for VAT. HM Revenue & Customs have refused the appellants the right to deduct this input VAT in contravention of the appellants’ fundamental right to deduction in respect of their taxable activities.”
“We are also satisfied that Mr. Day did not consider exercising the discretion because he considered all of the appeal invoices were invalid because no self-billing agreement was in place.”
“Mr. Mandalia submitted that [appellant’s] case was untenable because, as it had not had a self-billing agreement in place, regulation 29(2) could not be called in aid. Mr. Day was of the same opinion. He never, therefore, considered the application of the discretion.”
“The decision 48. We have considered the facts and the law and allow the appeal. Mr Mandalia submitted that the Company’s case was untenable because, as it had not had a self-billing agreement in place, Regulation 29 (2) could not be called in aid. Mr Day was of the same opinion. He never, therefore, considered the application of the discretion. He accepted that he had seen much of the documentation and that the Company was in all other respects compliant. He had, in any event, allowed the validity of the other 55 invoices. We have not been told what format those invoices took, but we assume they must have been in the same format as those produced to the Tribunal. 49. If Mr Mandalia’s proposition that the failure to have entered into a self-billing agreement is fatal to the Company’s claim, then there would appear to have been no need to establish that the four suppliers were deregistered, save that if the discretion was to have been exercised, the lack of registration would inevitably (See John Dee) have meant that the invoices could not have been valid. We do not accept on the evidence that the Company could have known that the four suppliers were deregistered. We are satisfied that Mr Burkhill spoke to the local VAT office which confirmed the registration. Mr Day’s evidence was inconclusive as to the timing of the deregistration. The dates for the de-registration may have been-back dated following the necessary enquiries. 50. In the case of Boguslaw Juliusz Dankowski v Dyrektor Izby Skarbowej w Lodzi (Case -438/09) referred to by Mr Edwards, the court held at paragraph 47: “47. It follows from all of the foregoing that Article 17 (6) of the Sixth Directive must be interpreted as precluding national legislation which excludes the right to deduct VAT paid by a taxable person to another taxable person, who has provided services, where the latter has not registered for the purpose of that VAT”
“29 (2). At the time of claiming deduction of input tax in accordance with paragraph (1) above, a person shall, if the claim is in respect of- (a) a supply from another taxable person, hold the document which is required to be provided under regulation 13;…..(our emphasis) …provided that where the Commissioners so direct, either generally or in relation to particular cases, a claimant shall hold or provide such other evidence of the charge to VAT as the Commissioners may direct. There is no doubt that the company held such other evidence of the charge to VAT. HMRC was fully aware that the Company was self-billing as evidenced by the many visits and the notes arising there from. Further, Mr Day conceded that he had seen most of the necessary documents. In fact, he can not deny the validity of the invoices, other than for the lack of the self-billing agreement, as he appears to have allowed all the other invoices. The invoices contained all the necessary information under regulation 14 and the legislation. 58. Nor can we accept that HMRC’s decision would inevitably have been the same because the four suppliers were deregistered. We have decided that the Company was entitled to rely on the advice from the local VAT office. We accept that no evidence, other than verbally from Mr Burkhill, has been produced of those telephone calls. We are not satisfied, however, from the evidence that the dates of the deregistration necessarily confirmed that the four suppliers were so deregistered at the time of the telephone request made by the Company. Mr Day was unable to tell us with any degree of certainty how the dates were arrived at. 59. We are satisfied that HMRC made no attempt to consider the discretion, having decided that the lack of a self-billing agreement was critical. We therefore allow the appeal as HMRC have acted unreasonably in not exercising its discretion and we agree with Mr Edwards’ submission that the failure of the officer to consider the discretion renders the assessment invalid per se”
“37. On18 March 2009 , Mr Day wrote to the Company following some correspondence over the previous months which I do not need to go into. Mr Day reiterated his conclusion that the relevant invoices were invalid for the reasons which he had previously given and which I have summarised above. He stated that he had attempted to visit the premises relevant to [two of the relevant suppliers], concluding that they did not operate from the address shown on the self-billed invoice. Mr Day was clearly alive to the existence of the discretion for HMRC to allow deduction notwithstanding the absence of an invoice. He wrote, clearly with the Statement of Practice in mind: “You have had the opportunity to provide further information which might permit me to exercise discretion in allowing these claims. In final conclusion, I do not consider that I can exercise discretion and will therefore be issuing an assessment……”. 38. A formal assessment followed in due course on25 March 2009 . 39. Whether Mr Day acted in a way which is not open to challenge is something I will need to look at later. But what is apparent from this letter is that he was aware that HMRC had a discretion and that he decided that it should not be exercised in the Company’s favour. He was not, at this stage, suggesting that, because there were no self-billing agreements, a necessary pre-condition for the exercise of the discretion had not been fulfilled so that there was, as yet, no discretion for him to exercise. Rather, he was saying that he had requested further evidence which would justify the exercise of the discretion but none had been provided. I reject Mr Thomas’ submission that Mr Day failed, at this stage, to consider on behalf of HMRC the exercise of the discretion vested in them: he did consider it, but decided on his view of the merits not to exercise it. …… 59. …Mr Day made two relevant decisions. The first appears from his letter dated18 March 2009 which resulted in the assessment. For the reasons which I have already given, I am of the view that that decision was not based on the proposition that it was simply not open to him to exercise the discretion in the absence of self-billing agreements. Rather, it was a decision not to exercise the discretion in favour of the Company in relation to which no doubt the absence of self-billing agreements was a factor (properly I might add) taken into account.”
“11. Since the tribunal’s jurisdiction is only supervisory, it follows that if HMRC have not exercised their discretion properly (including by failing to exercise it at all) the result is that the exercise of the discretion must be revisited. However, there is an exception where HMRC are able to show that, had the discretion been properly exercised, the decision would inevitably have been the same: see again John Dee Ltd[1995] STC 941 at 952 to 953 and Best Buy Supplies Ltd at [50] to [56]. …… 66. It follows from what I have said that the discretion must be exercised afresh unless either (i) HMRC can demonstrate that their decision would inevitably have been the same in July 2009, when Mr Day refused to allow the deduction of input tax, had he applied the correct principles or (ii) the Company can demonstrate that no reasonable body of Commissioners could conclude other than that deduction of the input tax should be allowed. In relation to (i), I say July 2009 rather than any later date because that is the date as of which it is being asked whether the exercise of the discretion would have been the same. In contrast, if HMRC are now to exercise their discretion afresh, it should be exercised on the basis of all of the material provided to them by the time of the exercise of the discretion. 67. As to (i), it is, in my judgment, far from clear to me that, if this matter were to be reconsidered by HMRC, their decision would necessarily be to refuse to allow the deduction of the input tax. If nothing else, the appeal to the First-tier Tribunal and now to the Upper Tribunal has clarified factors which should play a part in the decision-making process and has identified factual areas where further elucidation may be necessary, in particular in relation to the back-dating of the deregistrations before a decision is made. 68. As to (ii), it is, in my judgment, also far from clear to me that the only reasonable decision which HMRC could make would be to allow the deduction of the input tax. I do not consider that the findings of the Tribunal compel them to make such a decision. In the first place, given the decision of the Tribunal that HMRC had not even considered the exercise of their discretion, many of their findings were unnecessary to their decision and may simply be obiter. But that point apart, I have identified at paragraph 54 above a number of unsatisfactory aspects of the Decision. I do not consider that the Decision can be taken as making clear findings which bind HMRC when it comes, if it comes, to considering how to exercise their discretion. 69. Quite apart from that, it seems to me that the Tribunal approached the whole question of reasonableness in the light of their reading of Dankowski so that, provided that HMRC were satisfied that input tax had been paid to a taxable person, they should allow deduction. Dankowski is a decision to the effect that a Member State cannot impose extra conditions over and above those laid down in the relevant Directive for the deductibility of input tax which would render the right given by the Directive ineffective for practical purposes. But where the Directive itself lays down conditions for deductibility, the issue is different. The Directive itself gives no right to deduction when those conditions are not fulfilled. Instead, Member States are permitted to determine the conditions and procedures under which deduction is permissible where deduction is not in conformity with the express provisions of the Directive: see Article 18(3) of the Sixth Directive and Article 180 of the Principal Directive. The right to deduct in accordance with the relevant Directive is one thing: national legislation cannot be allowed to stand if it would, for practical purposes, render that right ineffective (save in special cases, such as the prevention of fraud in a proportionate manner). But where the relevant Directive itself lays down conditions under which that right can be exercised, it would not, in my view, be right to conclude that national legislation or administrative practice (justified by reference to what it now Article 180 of the Principal Directive) must always allow that right to be exercised notwithstanding non-compliance with the conditions but subject only to the same exceptions as would justify a derogation from the right to deduct. 70. No doubt, in laying down its national procedures, a Member State should take account of the fundamental principles of the EU VAT legislation but the Member State is not thereby compelled to adopt a system under which a taxpayer is to have a right to deduct whenever he can prove that he has paid input tax in relation to a supply by a taxable person. 71. I do not doubt that the scheme of the UK self-billing legislation, and in particular the provisions of Regulations 13 and 14, is compliant with EU law in that it does not impose disproportionate requirements as to the conditions to be met to obtain a deduction in the absence of a valid invoice. In particular, the proviso to Regulation 29(2) provides a mechanism to ensure that, in appropriate cases, a deduction can be obtained notwithstanding non-compliance with the statutory conditions. In exercising their discretion, HMRC are permitted, in my view, to take a wider view of the purpose of the discretion than simply giving effect, so far as possible, to the fundamental principle that a taxable person has a right to deduct input tax in respect of supplies from another taxable person. As the Tribunal has observed in UDL Construction PLC v CCER [195] V&DR 396, the self-billing system can be seen “as a gross violation of the integrity of the VAT system. ….. It goes without saying that such a dangerous procedure should be strictly controlled and policed.”
“Jurisdiction 8. I need to say a little more than I said in the UT Decision about the function and jurisdiction of the F-tT in relation to this matter and how they have come to be exercisable. 9. The matter came before the Tribunal by way of a statutory appeal against the assessment. The ultimate question on the appeal is whether the assessment should stand or not. Within that appeal, various issues have arisen. One issue is whether HMRC properly exercised their discretion when they refused to accept the evidence provided by the Company as sufficient for the proviso to Regulation 29(2) (“the Proviso”) to be invoked. HMRC maintained before the Tribunal that their decision was proper; the Company maintained that it was not. The Tribunal decided in favour of the Company. It allowed the appeal, that is to say the appeal against the assessment. As they said in [59] of the Decision: “We are satisfied that HMRC made no attempt to consider the discretion having decided that the lack of self-billing agreement was critical. We therefore allow the appeal as HMRC have acted unreasonably in not exercising the discretion and we agree with Mr Edwards’ submission that the failure of the officer to consider the discretion renders the assessment invalid per se.” 10. It is important to appreciate that the appeal before the Tribunal is, as I have just said, an appeal against the assessment; it is not an appeal against HMRC’s decision in relation to the Proviso, which is no more than an issue within the appeal. There is no right to appeal against HMRC’s decision as such. The reason why the point is important is because of the arguments which have been raised about whether the FtT’s function is appellate or whether it is supervisory. 11. …I do not consider that there can be any doubt about the nature of the proceedings. In relation to the statutory appeal against the assessment, the F-tT has a truly appellate function. It (and, on appeal, the Upper Tribunal) will either uphold the assessment or discharge it. But in relation to the decision in relation to the Proviso, the F-tT’s function and jurisdiction are purely supervisory. In other words, the F-tT is to examine whether the discretion has been properly exercised. The F-tT’s function is to rule on whether the discretion has been properly exercised. If, as in the present case, it decides that is has not been, then it will identify why that is so; but it is not for the F-tT to substitute its own view for that of HMRC “ 12. The legislation does not say anything expressly about how effect is to be given to the supervisory jurisdiction described in the immediately preceding paragraph. Instead, the courts and the tribunals have proceeded in a way that recognises that Parliament has given the discretion in such matters to HMRC and has adopted a similar approach to that which is adopted by the Administrative Court in relation to challenges to the exercise by public authorities of administrative decisions…” “41. I have found it helpful to start with a consideration of how the statutory scheme would operate if a taxpayer did not seek a review of a decision or if there were no review procedure at all. A taxpayer wishing to challenge a decision not to apply the Proviso and who has been assessed accordingly would bring an appeal against the assessment. 42. Suppose that the challenge is based on a merits defect and that it is successful. The F-tT would be saying that no reasonable body of Commissioners could, on the material before it, have refused to apply the Proviso. It would then be appropriate to allow the taxpayer’s appeal. HMRC should adduce before the F-tT all the material on which they seek to rely to justify their decision; the F-tT should not give HMRC another opportunity to find further material which might justify the decision which they in fact made when, all along, the nature of the challenge was known. In those circumstances, the F-tT would not be substituting its own exercise of the discretion for that of HMRC but would be doing no more than give effect to its conclusion that no reasonable Commissioners could act as HMRC had in fact acted. 43. But now suppose that the challenge is based only on a process defect and is again successful. The position is then very different. The F-tT will not have investigated the merits of HMRC’s decision at all; indeed, HMRC themselves may not have done so because of their misunderstanding of the law. It may be that, on the facts, it would have been entirely within the proper exercise of their discretion on the merits for HMRC to refuse to apply the Proviso if there had been no process defect. The F-tT will, in the exercise of its supervisory function, rule that the discretion was not properly exercised. It does not follow that it should then, in the exercise of its appellate function on the statutory appeal, allow the appeal against the assessment.44. It seems to me that whether the assessment is ultimately to be upheld depends on whether HMRC’s discretion under the Proviso is to be treated as having been exercised. In the case of a merits defect, it inevitably follows from a finding that no reasonable body of Commissioners would have made a decision refusing to exercise their discretion in favour of the taxpayer that the discretion is to be treated as having been so exercised. The result is that the appeal against the assessment succeeds. It does not matter that there may be no power actually to quash the decision. 45. In contrast, in the case of a process defect, all that follows is that the decision has not been properly made and the discretion has not been exercised in favour of the taxpayer. It does not follow that the contrary decision has been made, that is to say that HMRC are to be treated as having made a decision to exercise their discretion in favour of the taxpayer. In contrast with the situation in John Dee, the F-tT is not faced with binary choice. 46. The starting point, in my judgment, must be that the assessment is valid unless and until it is shown that the taxpayer is entitled to have the discretion exercised in his favour. This he can do by establishing a merits defect; but he cannot do it by establishing only a process defect…. 47. So where does this leave the assessment once a process defect has been established? As Mr. Thomas says, HMRC cannot be directed to reconsider the exercise of their discretion. It does not, however, follow that HMRC should not be able, without the need for a direction, to reconsider the exercise of their discretion. Consider the position if they could and would do so. If they decide in favour of the taxpayer, that will be an end of the matter and the statutory appeal will be allowed. If they decide against the taxpayer, then the taxpayer can continue with his statutory appeal on the basis of a merits defect if he considers that the facts warrant it. There is no need for the original decision to be quashed in either of these cases and the absence of an express power to do so does not matter.” 48. But what if HMRC simply sit on their hands and do nothing? In those circumstances, it would remain open to the taxpayer to continue with its appeal by seeking to establish a merits defect, in other words to attempt to persuade the F-tT that no reasonable body of Commissioners could refuse to exercise the discretion in his favour. If that were established, it would not matter whether or not HMRC had in fact reconsidered the exercise of their discretion. Having made a decision, in the exercise of its supervisory jurisdiction, that no reasonable body of Commissioners could refuse to exercise the discretion in favour of the taxpayer, the F-tT could then properly go on to allow the statutory appeal. …… 51. The consequence of my analysis is that the Tribunal should not have allowed the Company’s appeal against the assessment (although it does not follow from that that they should have dismissed it). The F-tT can only properly allow the appeal once it has decided that no reasonable body of Commissioners could refuse to exercise the discretion under the Proviso in favour of the Company or once HMRC have decided to exercise their discretion in favour of the Company. …… Conclusions 61. The Tribunal should not have allowed the Company’s statutory appeal. That appeal should be allowed only in one of the two following circumstances: a. HMRC revisit the exercise of their discretion under the Proviso and decide to exercise it in favour of the Company; or b. It is decided by the F-tT (or possibly the UT) that no reasonable body of Commissioners could reach a decision not to exercise the discretion under the Proviso in favour of the Company. The information by reference to which that issue is to be decided clearly includes everything which was made available by the Company on the review and up to the time of the July decision. So far as I am aware, there is no further material on which the Company would wish to rely. However, it seems to me that if HMRC make a further decision, they should do so on the basis of all the material available when they do so and that any challenge by the Company should be on the basis of all that material. …… 63. The matter must be remitted to the F-tT for it to decide whether HMRC would be acting within the proper exercise of their powers to decide not to exercise their discretion under the Proviso in favour of the Company. Judge Porter having now retired, any further hearing should be before a differently constituted panel. The F-tT is to take account of the contents of this decision when it determines the date as of which the enquiry is to be carried out and the evidence on which it is to make its decision. In the meantime, HMRC should consider whether to revisit the exercise of their discretion. If they do so, and if they exercise it in favour of the Company, that should be an end of the statutory appeal which will be allowed, but if they exercise it against the Company, the F-tT’s enquiry should focus on that decision and all of the material on which it is properly to be based. If HMRC decision to revisit the exercise of their discretion, the F-tT should carry out its enquiry as if HMRC had decided not to exercise the discretion in favour of the Company.”
“having concluded that HMRC had acted unreasonablyin not exercising their discretion under Regulation 29(2) to accept, in the absence of proper self-billing invoices, alternative evidence in support of input tax deductions in July 2009 then the Upper Tribunal had no alternative open to it other than to conclude that HMRC’s failure rendered the assessment invalid. There is no jurisdiction which enables the tribunal to make any other order. Accordingly, HMRC’s appeal against the FTT Decision should have been dismissed. See paragraph 41 of the appellant’s written submissions. ”
“that the Upper Tribunal failed to apply its own test correctly. HMRC has accepted that the relevant conditions which show that [the appellant] is entitled to deduct input tax are satisfied. The right to deduct input tax is an integral part of the VAT scheme and the CJEU has made clear that where a tax authority has the information necessary to establish a substantive right to deduct input tax then deduction of input tax must be allowed even if the taxpayer has failed to comply with some of the formal requirements. Accordingly, had the Upper Tribunal applied its own test to the facts then, again, it would inevitably have concluded that [the appellant’s] appeal against the assessment must be allowed (and HMRC’s appeal against the FTT’s Decision dismissed).”
'Where it appears to the Commissioners requisite to do so for the protection of the revenue they may require a taxable person, as a condition of his supplying goods or services under a taxable supply, to give security, or further security, of such amount and in such manner as they may determine, for the payment of any tax which is or may become due from him.'
“In view, however, of the detailed arguments which were addressed to this court I do not think it is necessary to do more than attempt to summarise what I understand to have been the conclusions reached by Turner J in the course of his careful judgment. His conclusions, as I understand them, were as follows: (a) That the jurisdiction of the tribunal was not 'limited to the detection and quashing of any decision made by the Commissioners which is Wednesbury unreasonable' (at 272 and cf at 275, 276). The provisions contained in the 1986 rules were inconsistent with a purely supervisory function. Accordingly the jurisdiction was appellate and not supervisory. (b) That an appellate jurisdiction can be of two kinds--an appeal by way of rehearing or an appeal simpliciter (at 277). An appeal by way of rehearing is of the kind which is conferred on the Court of Appeal bys 15(3) of the Supreme Court Act 1981 (the 1981 Act) which provides: 'For all purposes of or incidental to--(a) the hearing and determination of any appeal to the civil division of the Court of Appeal ... the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.' (c) That on an appeal to a value added tax tribunal the tribunal does not have powers equivalent to those contained ins 15(3) of the 1981 Act . One of the reasons for this (at 278) is that the tribunal 'cannot be expected to be invested with the same knowledge and experience as the commissioners for the purpose of substituting its own exercise of discretion in place of the discretion which ought to have been exercised by the commissioners'. It follows therefore that an appeal to a tribunal is an appeal simpliciter or at any rate something less than a full appeal by way of re-hearing. (d) That once the tribunal had decided that the commissioners had misdirected themselves the appeal should have been allowed and the tribunal should have left it to the commissioners to take a fresh decision if they thought fit on the facts as they had become by the date of the fresh decision (at 278). The tribunal had erred in substituting its own view of what the commissioners would have determined had they properly taken into account the facts as they were at the date of that determination (at 277). Accordingly Turner J allowed the company's appeal.”
“Counsel for the company was clearly right to emphasise that the function of the tribunal is an appellate function. Section 40(1) of the 1983 Act makes provision for an appeal. Furthermore, I agree that references in this context to Wednesbury principles are capable of being a source of confusion. ….. It is clear from s 40 itself that the decisions from which an appeal may lie cover a wide field. It is also clear that, though the construction of the 1983 Act cannot be determined by the subordinate legislation, the 1986 rules show that the tribunal can, inter alia, hear evidence and make orders relating to discovery. It is true that there is no express provision in Sch 8 to the 1983 Act or elsewhere in the 1983 Act governing the powers of a value added tax tribunal on an appeal under s 40. I am, however, unable to accept Mr Engelhart's general proposition that, in the absence of any express limitation, the powers of a tribunal are akin to those of the Court of Appeal. In my judgment it is necessary in each case to examine the nature of the decision against which the appeal is brought. It is also necessary to take account of the fact that, by virtue of para 1(1) of Sch 7 to the 1983 Act, VAT is under the care and management of the commissioners. In furtherance of his argument that, once the tribunal had decided that the decision of the commissioners was flawed, it could substitute its own discretion, counsel for the company was constrained to submit that it was for the tribunal to decide whether it appeared to it 'requisite for the protection of the revenue' to require a taxable person to give security. I am quite unable to accept this submission. It seems to me that the 'statutory condition' (as Mr Richards termed it) which the tribunal has to examine in an appeal under s 40(1)(n) is whether it appeared to the commissioners requisite to require security. In examining whether that statutory condition is satisfied the tribunal will, to adopt the language of Lord Lane, consider whether the commissioners had acted in a way in which no reasonable panel of commissioners could have acted or whether they had taken into account some irrelevant matter or had dis-regarded something to which they should have given weight. The tribunal may also have to consider whether the commissioners have erred on a point of law. I am quite satisfied, however, that the tribunal cannot exercise a fresh discretion on the lines indicated by Lord Diplock in Hadmor. The protection of the revenue is not a responsibility of the tribunal or of a court. I do not consider that it is necessary or would be appropriate in this case to give guidance as to other categories of appeal under s 40(1), other than to say that in my view the function and powers of a tribunal in each case will de-pend in large measure on the nature of the decision appealed against and of course on any special statutory provisions. …… I turn therefore to the second matter raised in the appeal. I can deal with this very shortly. It was conceded by Mr Engelhart, in my view rightly, that where it is shown that, had the additional material been taken into account, the decision would inevitably have been the same, a tribunal can dismiss an appeal. In the present case, however, though in the final summary the tribunal's decision was more emphatic, the crucial words in the decision were (at 203): 'I find that it is most likely that, if the Commissioners had had regard to [the report to the licensing authority] their concern for the protection of the revenue would probably have been fortified.' I cannot equate a finding 'that it is most likely' with a finding of inevitability. On this narrow ground I would dismiss the appeal.”
“the function and powers of a tribunal in each case will depend in large measure on the nature of the decision appealed against and of course on any special statutory provisions.”