Gore v Revenue & Customs [2014] UKFTT 904 (TC)

FTT-Tax
Gore v Revenue & Customs
[2014] UKFTT 904 (TC) · 2014-09-18
[49]“ There is authority which supports the conclusion that general conduct towards taxpayers is outwith the Tribunal's jurisdiction. I turn first to Lord Lane (with whom Lords Scarman and Simon agreed) in CCE v Corbitt [1980] STC 231 at p.239h: ‘ Assume for the moment that the tribunal has the power to review the commissioners' discretion. It could only properly do so if it were shown the commissioners had acted in a way which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. If it had been intended to give a supervisory jurisdiction of that nature to the Tribunal one would have expected clear words to that effect in the 1972 Act. But there are no such words to be found. Section 40(1) sets out nine specific headings under which an appeal may be brought and seems by inference to negative the existence of any general supervisory jurisdiction.’ (Section 83 is the successor to the s.40(1) of the 1972 Act referred to. There are now more specific headings but no general supervisory jurisdiction has been conferred.) ”18. Mr Bates distinguished an assessment and the decision to make an assessment. The latter he submitted was an application of HMRC’s enforcement powers. HMRC always had a discretion in relation to the enforcement of tax liabilities under its powers of care and management. Use of the words “may assess” in section 73 simply recognised that discretion. The jurisdiction of the FTT was limited to whether the assessment was correct as a matter of law, including where appropriate whether it was made to best judgement. Otherwise there would be a distinction between decisions in relation to input tax where legitimate expectation arguments could not be raised and decisions giving rise to output tax assessments where such arguments might be raised. He submitted that there was no logical basis for such a distinction and the appellant had not suggested one.19. I would add that it is also possible that an input tax credit previously given might be the subject of an assessment. There would have to be clear words to give jurisdiction over the discretion of HMRC to deny credit and recoup tax by way of assessment but not in the case of a decision simply refusing an input tax credit.20. Mr Bates relied on the Court of Appeal decision in Aspin v Estill (Inspector of Taxes) [1987] STC 723 which was also referred to by the Upper Tribunal in Abdul Noor. In that case the Inland Revenue assessed a taxpayer to income under Schedule D Case V. The taxpayer claimed that he had been given information over the telephone that such income would not be subject to tax and it was unfair and oppressive for the Revenue to assess him. At 727c Nicholls LJ stated: “ The taxpayer is saying that an assessment ought not to have been made. But in saying that, he is not, under this head of complaint, saying that in this case there do not exist in relation to him all the facts which are prescribed by the legislation as facts which give rise to a liability to tax. What he is saying is that, because of some further facts, it would be oppressive to enforce that liability. In my view that is a matter in respect of which, if the facts are as alleged by the taxpayer, the remedy provided is by way of judicial review. ”21. It as well established that challenges to HMRC’s decisions to enforce a liability by way of assessments to income tax are outside the jurisdiction of what were the general or special commissioners. Against that background I consider that very clear words would be required to bring such decisions in relation to VAT assessments within the jurisdiction of what was the VAT Tribunal and is now the FTT.22. In making his submissions Mr Ginniff relied on a decision of the FTT (Judge Hellier and Mr Williams) in Hollinger Print Ltd v Commissioners of HM Revenue & Customs [2013] UKFTT 739 (TC) . In that case, like the present, the appellant argued that the decision to assess VAT was an unfair exercise of discretion. The appeal was pursuant to section 83(1)(p) VATA 1994. The FTT relied on an earlier decision of the VAT Tribunal in Technip Coflexip Offshore Ltd v Commissioners of HM Revenue & Customs (Decision 19298) where the tribunal allowed an appeal because HMRC had failed to consider their discretion to make an assessment.23. The FTT in Hollinger considered that section 73(1) conferred a discretion on HMRC whether or not to make an assessment. That is clearly correct. The FTT referred to Rahman (No 2) v C & E Commissioners [2003] STC 150 and C & E Commissioners v Pegasus Birds [2004] STC 1515 where the Court of Appeal identified two distinct questions in appeals under section 83(1)(p). First whether the assessment has been made under the power conferred by section 73(1) including the use of best judgement. Second whether the amount of the assessment is correct. In relation to best judgement where a tribunal is satisfied that the commissioners have made a mistake in the assessment the Court of Appeal in Pegasus Birds at [21] re-affirmed the question to be asked in the following terms: “ … the relevant question is whether the mistake is consistent with an honest and genuine attempt to make a reasoned assessment of the VAT payable; or is of such a nature that it compels the conclusion that no officer seeking to exercise best judgment could have made it. Or there may be no explanation; in which case the proper inference may be that the assessment was indeed arbitrary. ”24. At [58] the FTT in Hollinger stated as follows in relation to these cases: “ What, in view of our discussion of the meaning of "may" in section 73, is striking about these cases is the concentration on the use of "best judgement" to assess the tax. There is no express consideration of the question whether, if it is found that to the best of HMRC's judgement tax is due, it should in fact be assessed, even though the Wednesbury principles, which are clearly in the (sic) linked to the requirement properly to consider the exercise of any discretion by a public body, were in the minds of the judges. But that approach must be viewed in the light of the arguments in the appeals before the courts. The attack in each case had not been on the decision to assess, but on the judgement used in making the assessment. It seems to us that the test is described is equally applicable to both questions and that the two questions are not to be addressed separately; there is one question only and that is whether it was wholly unreasonable to make the particular assessment. ”25. The FTT in Hollinger seems to be saying that the discretion whether to make an assessment is bound up with the issue of whether an assessment is made to best judgement. If the answer to the single question is that it is “ wholly unreasonable ” to make the assessment then it can be set aside.26. I do not consider that approach can be right, given the way in which the Court of Appeal has interpreted what is meant by best judgement. Indeed in Pegasus Birds at [22] Carnwarth LJ stated:[22]“ In the light of that authoritative statement of the law, I would caution against attempts to refine or add to it, by reference to individual sentences or phrases from previous judgments .… Even the term "wholly unreasonable" (also used in Van Boeckel) may be misleading if it is treated as a separate test, rather than as simply an indication that there has been no "honest and genuine attempt" to make a reasoned assessment. ” 27. The Court of Appeal in Pegasus Birds and previous cases closely scrutinised the wording of section 73(1). It seems to me inconceivable that it would have analysed best judgement in the way it did if the tribunal had an overriding power to consider whether HMRC were justified in exercising their discretion to make an assessment. If that was right it seems to me that the concept of best judgement would be almost redundant. 28. The FTT in Hollinger had been referred to Abdul Noor but distinguished it on the basis that it was concerned with section 83(1)(c). Similarly it distinguished Aspin, National Westminster Bank and J H Corbitt (Numismatists) Ltd principally on the basis that they concerned different statutory provisions. 29. The FTT in Hollinger stated its conclusion at [62] as follows:
“ It seems to us that the width of the words in section 73(1)(p) “against the assessment” indicate that this tribunal’s role is not confined solely to the question of whether it was made to the best of HMRC’s judgment. The section does not limit the appeal to one “against the question of whether the amount of assessment was made to the best of HMRC’s judgement”
. But in our view the scheme of section 73 does not require a separate formal decision to exercise the power to assess, and a second separate formal decision as to what amount should be assessed. The two decisions are one, and, on appeal against the assessment, there is one question which is to be asked in relation to that single decision: was it made wholly unreasonably? If the answer is yes, then the appeal against the assessment must succeed. In any event if it was made wholly unreasonably it cannot have been made to the best of the judgement of the Commissioners. ” 30. For the reasons given above the scheme of section 73(1) and section 83(1)(p) envisages two questions for the tribunal. Firstly whether the assessment was made to best judgement pursuant to the power in section 73(1). Secondly whether the amount of the assessment was correct. I agree with Mr Bates that the decision as to whether an assessment should be made is essentially a matter of enforcing the liability provided for by the statute. 31. Notwithstanding the view it had taken as to jurisdiction, the FTT in Hollinger found that on the facts the decision to assess was not unreasonable. The reasons it gave for reaching that decision are set out at [64] and illustrate tension with the conclusion that it had jurisdiction over the discretion to assess. 32. At [64(1)] the FTT said that the effect of making an assessment on the survival of the taxpayer’s business was not a relevant factor. The FTT stated “ An assessment is concerned with determining the amount of tax which is due; the second stage is the collection of tax ”. In my view it is the specific terms of VATA 1994 and associated legislation that determines the amount of tax lawfully due. Assessment of the tax is part of the collection process (see Aspin). Various stages in the process of enforcement no doubt involve consideration of policy issues which might include for example the weight to be attached to the amount of the assessment, the circumstances of the appellant and the circumstances generally in which the liability arose. 33. At [64(4)] the FTT stated as follows: “ In making his assessment we consider that Mr Donnelly acted fairly and honestly on the information available to him. He took a decent length of sample period, he asked for the Appellant's comments on his conclusions and on the representative nature of the period before making his assessments. He adjusted the assessments for the Zenith bad debt. He considered the taxpayer’s representation on individual items. In his evidence before us, he said that he had addressed the issue of whether the disputed supplies were “one-offs” and thus whether it was fair to extrapolate calculations about their effect into earlier periods: he said that he had invited Mr Hollinger’s comments on the point but concluded that, if anything, the incidence of similar supplies to those in dispute was probably greater in earlier periods, such that a detailed review of those periods might produce more additional tax than a mere extrapolation. ” 34. These are factors which might be relevant to whether best judgement has been exercised or to the proper amount of tax due. The question in relation to best judgement is whether the officer made an honest and genuine attempt to make a reasoned assessment. If the answer to that question is that best judgement has been used, I do not consider that the Court of Appeal intended either as a further question or as part of the same question consideration of the broader issue as to whether the decision to assess was reasonable. 35. The decision of the FTT in Hollinger has subsequently been considered by the FTT (Judge Berner and Mr Jenkins) in Southern Cross Employment Agency Ltd v Commissioners of HM Revenue & Customs [2014] UKFTT 088 (TC) . HMRC had assessed VAT under section 80(4A) of VATA 1994 and interest under section 78A(1). The appellant contended that there was a binding agreement compromising a claim for repayment of VAT and interest. One issue was whether, even if HMRC had power to make assessments under section 80(4A) and section 78A(1), it was unlawful for them to exercise their discretion to do so. In the light of its decision on the other issues, consideration of this issue was not necessary for the FTT’s decision. However it did say something about the issue. 36. Section 80(4A) in so far as relevant provides as follows:[70]“ (4A) Where— (a) an amount has been credited under subsection (1) or (1A) above … and (b) the amount so credited exceeded the amount which the Commissioners were liable at that time to credit to that person, the Commissioners may, to the best of their judgement, assess the excess credited to that person and notify it to him. ” 37. Section 78A(1) in relation to interest was in similar terms. 38. It is notable that if the present appeal was concerned with assessments by HMRC to recover amounts repaid to the appellant following the voluntary disclosure that was made in June 2007 then those assessments would have been made pursuant to section 80(4A). 39. At [95] the FTT in Southern Cross Employment stated as follows:[95]“ … As Noor has confirmed, the Tribunal is a creature of statute, and its jurisdiction is defined by statute. In this case, the relevant statutory provisions are s 83(1)(t) and (sa) VATA. Whilst there can be no doubt that the jurisdiction under these provisions extends to the question of construction of s 80(4A) and s 78A(1), and to findings as to the making and validity of a compromise agreement in order to apply those sections as so construed to the facts of a particular case, we do not consider that the VATA provides a jurisdictional base for examining the lawfulness of the administrative exercise of any power to assess under those sections. It seems to us that there is a jurisdictional dividing-line, and that arguments that look to the policy of HMRC and the factors which HMRC should, or should not, have taken into account in deciding to assess fall, along with arguments whether HMRC should not have refused to withdraw the assessments, on the judicial review side of that line. ”40. The words of section 80(4A) include “ may…assess ” as does section 73(1) relied on in the present appeal. The FTT in Southern Cross Employment did not consider that this together with section 83(1)(t) and (sa) were sufficiently clear to give a supervisory jurisdiction over the decision to assess. I respectfully agree with that conclusion. I would add that in the context of the present appeal there is no reason to think that Parliament intended a different result in relation to assessments under section 73(1).41. It is clear also from [96] to [99] that the FTT in Southern Cross Employment reached a different conclusion on this point to Hollinger, although it did not expressly say that Hollinger was wrong. At [98] and [99] it said as follows:[98]“ 98. Unlike the position in Hollinger, there is authority, in the High Court in Customs and Excise Commissioners v National Westminster Bank plc [2003] STC 1072 , in the context of one of the particular provisions with which we are concerned in this case, s 83(1)(t), that this Tribunal has no jurisdiction in relation to the supervision of HMRC’s conduct. Although the focus in National Westminster Bank was not on an assessment, but on the refusal of the commissioners to pay a claim under s 80, and the court did not expressly consider the jurisdiction in s 83(1)(t) over both “an assessment” and “the amount” of an assessment (similar wording to that in s 83(1)(p) which the Tribunal in Hollinger regarded as decisive), we regard the tenor of the judgment in National Westminster Bank as pointing clearly against this Tribunal having jurisdiction over the exercise of discretion by HMRC in the making of an assessment under s 80(4A).[99]As Lord Lane (with whom Lord Diplock, Lord Scarman and Lord Simon of Glaisdale agreed) said in Customs and Excise Commissioners vJH Corbitt (Numismatists) Ltd [1980] STC 231, at p 239, clear words would be necessary to give the Tribunal a supervisory jurisdiction. With respect to the Tribunal in Hollinger, we do not consider that either s 83(1)(t) of s 83(1)(sa), notwithstanding the references in those provisions to “assessment” as well as to “the amount” of the assessment, do provide such clear words. ” 42. For the reasons given above, and for those expressed in Southern Cross Employment, I consider that Hollinger was wrong in relation to jurisdiction under section 83(1)(p). There is no material difference between the provisions being considered by the FTT in Southern Cross Employment and the provisions being considered by the FTT in Hollinger which in turn are the same as those in the present appeal. 43. Recently the FTT in Rotberg v Commissioners of HM Revenue & Customs TC/2010/04359 (Judge Berner and Mrs Darley) again considered the decision in Abdul Noor and sought to reconcile at least the result in that case with the decision of Sales J in Oxfam. At [106] and [109] the FTT stated as follows: “ 106. Viewed in this way, it is we suggest possible to reconcile Oxfam and Noor into a single proposition that s 83(1)(c) can be construed so as to provide jurisdiction to the First-tier Tribunal to consider public law arguments where what is at issue is the credit of input tax (that is, actual or deemed input tax under the legislation), but not where what is sought to be credited is not such input tax. … 109. What we can derive from Oxfam and Noor is that, once it is accepted (as it was in both cases) that the First-tier Tribunal has no general supervisory jurisdiction, the question of jurisdiction is not one of principle but one of statutory construction. ”44. I agree with Mr Bates that the appellant’s argument on this preliminary issue would remove much of the distinction between the jurisdiction of the tribunal and that of the Administrative Court in this context. Clear words would be required for that result and the wording of section 83(1)(p) does not clearly give that result. I do not consider that the words “ with respect to … an assessment ” in section 83(1)(p) are capable of incorporating within the jurisdiction of the tribunal HMRC’s discretion whether or not to make an assessment. They are limited to whether the assessment is correct as a matter of law, including whether the assessment is made to best judgement. Conclusion45. For the reasons given above I do not consider that the FTT has any supervisory jurisdiction over HMRC’s discretion to make an assessment under section 73(1). I therefore determine the preliminary issue accordingly. That being the only ground of appeal I must dismiss the appeal.46. By way of postscript I must make reference to the fact that the appellant was seriously misled by HMRC. If she relied on the advice given then she ought to have a remedy. Her legal remedy would lie by way of judicial review. Otherwise she could complain to the Adjudicator or to the Parliamentary Ombudsman.47. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. JONATHAN CANNAN TRIBUNAL JUDGE RELEASE DATE: 18 September 2014

Cited in 1 later judgment