Mustafa Barak t/a Moulin Rouge Fish and Chips v The Commissioners for HMRC [2026] UKFTT 1224 (TC)
[2026] UKFTT 01224 (TC)Case No TC 09993
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 19 June 2026Date Judgment date: 21 August 2026
By remote video
Appeal reference: TC/2023/09439
INCOME TAX – Eat Out to Help Out Scheme – claim by appellant for support payments for meals sold in August 2020 – HMRC assessment on basis that appellant not entitled to any of the claim – no basis to conclude how much Appellant overcharged by assessment – appeal dismissed
Before
TRIBUNAL JUDGE ROSA PETTIFERMR MOHAMMED FAROOQ
Between
MUSTAFA BARAK T/A MOULIN ROUGE FISH AND CHIPSAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondentThe Appellant represented himself for AppellantMr Paul Marks litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION
the hearing
[1]The form of the hearing was V (video). The Tribunal, the Appellant, Mr Marks and Mrs Rachael Moss (an officer of HMRC) attended remotely. The remote platform was Microsoft Teams. A face to face hearing was not held because it was not expedient to do so. The documents to which we were referred were: an amended documents bundle of 478 pages; and HMRC’s skeleton argument of 5 pages (albeit skeleton arguments were not directed).[2]Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely in order to observe the proceedings. As such, the hearing was held in public.
introduction
[3]introduction This appeal concerns the Appellant’s claims under the Eat Out to Help Out Scheme (which we refer to as “EOHOS” or “the scheme”). The scheme is a widely known scheme that was created to incentivise people to eat out on Mondays, Tuesdays and Wednesdays during August 2020 to help restaurants that had been adversely affected by Covid.[4]The Appellant was registered for and made four claims totalling £19,500 under the scheme.[5]HMRC paid the Appellant’s claims under the scheme but following an investigation subsequently issued an assessment to recoup the entirety of the Appellant’s claims on 10 December 2021 for £19,5000 (the “Assessment”).[6]For the reasons given below we dismiss the appeal.
the law
[7]the law In Café Jinnah LLP v HMRC [2024] UKFTT 00159 (TC) (“Café Jinnah”) the Tribunal set out the law in relation to the scheme in the Appendix to that decision. The Tribunal also set out in its discussion ‘Who has to prove what?’ the legal test to be applied at [14] – [25]. We gratefully adopt the explanation of the law and the analysis as to what the relevant legal test is. We also use the defined terms from those excerpts.
preliminary points
[8]preliminary points Documents and evidence The Tribunal heard oral evidence from the Appellant and Officer Rachael Moss who were both cross-examined. Officer Moss answered questions in a straightforward manner and her evidence was largely unchallenged. We found Officer Moss to be honest and credible.We have carefully considered the Appellant’s evidence in the round. Whilst some inconsistencies emerged, we are satisfied that generally he was seeking to give an honest account and was not attempting to mislead the Tribunal. However, for the reasons set out below, the evidence and submissions advanced by the Appellant do not provide a sufficient evidential basis for the Tribunal to determine his actual tax liability ie to conclude to what extent the Assessment was excessive.[9]We set out the majority of our findings of fact in 'The facts' part of our decision. Although where it is clearer to do so we make some in other sections of our decision. A significant proportion of our findings of fact are from the documents supplied or the parts of the unchallenged evidence of the Appellant and Officer Moss. Consequently, many of our findings of fact require no discussion as they were not in dispute. Where they were in dispute or require further discussion, we provide the reasons for our findings below. Therefore, generally we incorporate the relevant evidence in our findings rather than setting it out separately.
Parties’ submissions
[10]Parties’ submissions We are grateful to the Appellant and Mr Marks their submissions (including HMRC’s skeleton argument), willingness to engage with our questions and to the witnesses for their evidence. We set out below our summary of those submissions on the law and the facts. The parties should, however, be assured that when preparing this decision our notes of the hearing and the documents we were taken to were reviewed. Because we do not deal specifically with any point it does not mean that it was not considered in the round when reaching our decision.
the issues, burden and standard of proof
[11]the issues, burden and standard of proof HMRC bear the burden of showing that they made a valid assessment, this encompasses:(1) that the Assessment meets the relevant formalities: it was made in time and properly served; and(2) that: (a) Officer Moss believed that the information available to her pointed in the direction that the Appellant had received EOHOS payments to which he was not entitled; and (b) Officer Moss’ belief is an objectively reasonable one ie one which a reasonable officer could form on the basis of the information available to her. We refer to (a) and (b) as the “Officer Conditions”.[12]If HMRC discharge their burden then the Appellant bears the burden of showing that:(1) he has been overcharged by the Assessment; and(2) if so by how much.[13]The standard of proof on all issues is the balance of probabilities.
the parties’ positions
[14]the parties’ positions Some of the correspondence to which we were referred concerned penalties emanating from the facts of this appeal. It is now clear that any penalties are not before us and do not form part of this appeal. Therefore, we do not address that matter or the related correspondence in this decision.
The Appellant’s position
[15]The Appellant’s position The Appellant’s Grounds for Appeal are: 1. The assessment fails to provide any details whatsoever as to why I was not entitled to the Eat Out To Help Out (EOTHO) payments. 2. The assessment fails to refer to the evidence used to come to the conclusion the decision maker has reached. 3. The assessment fails to refer the evidence I have provided. The assessment fails to mention which evidence has or has not been deemed to be relevant or irrelevant. 4. The assessment fails to be reasonable decision in that it is against "the Wednesbury Principles". According to the Wednesbury Principles a decision must be 'reasonable', i.e. the decision must be rationally open to a reasonable decision maker in possession of all the facts in the case. We refer to these as issues 1 – 4 respectively.[16]During the hearing the Appellant was keen to highlight that the scheme had been lauded as a success and now HMRC were saying that it cannot have been as successful as he was claiming. In his view these statements were not reconcilable. We understand the Appellant’s sentiments but they do not assist us in resolving this appeal.
HMRC’s position
[17]HMRC’s position HMRC say that:(1) the Assessment complies with the relevant formalities and the Officer Conditions; and(2) their main submission is that the Assessment should be upheld because insufficient evidence has been provided to support the Appellant’s claims.
the facts
[18]The Appellant runs Moulin Rouge Fish and Chips as a sole trader (we refer to the business as “Moulin Rouge”).[19]In August 2020 the Appellant operated the scheme.[20]Moulin Rouge provides takeaway and eat in meals.[21]In August 2020 the Appellant made four claims pursuant to the scheme as follows: Dates No of diners Amount of claim Average claim per diner 10 – 12 August 315 £2,800£8.89 17 – 19 August 625 £5,400£8.64 24 – 26 August 780 £7,500£9.62 31 August 450 £3,800£8.44 2,170 £19,500[22](the “Claims”). In August 2020 the Appellant was in Turkey. Moulin Rouge was operated by the Appellant’s staff.[23]On 20 January 2021 HMRC wrote to the Appellant commencing a compliance check into the Claims. That letter contained a number of questions.[24]On 12 March 2021 the Appellant responded as follows: I will respond to your questions raised in your letter using the same bullet point[25]On 16 March 2021 HMRC wrote to the Appellant requesting further information. As no response was received HMRC chased the Appellant on 1 April 2021. The Appellant replied on 12 April 2021 saying that he had had some personal matters to attend to an asking for a short extension to provide the requested information. HMRC agreed a longer extension until 28 April 2021 by reply.[26]Following further correspondence, on 26 May 2021 HMRC sent the Appellant a Schedule 36 Finance Act 2008 information notice. The information requested was: STATUTORY RECORDS OR INFORMATION THAT WE NEED Statutory records are the records that tax law says a person must keep.• For the periods 10/08/21, 12/08/21 and 31/08/21, please provide z till rolls and receipts for daily totals and customer transactions.• A back up of your electronic records showing your purchases and sales ledger entries• A copy of any bank account statements that show business transactions, for the period of the claim INFORMATION AND DOCUMENTS THAT WE NEED In this context 'document' means anything used to record any type of information. This includes any records held on computer, magnetic tape, optical disk (CD-ROM/DVD), hard disk, memory stick, flash drive, floppy disk or other recording media.• Please confirm once a customer has placed an order, do they receive their food immediately or is it taken to the table by a member of staff? How long does this take?• You stated the average spend was £30-£40, was this for one customer?• With reference to your floor plan, does this represent your social distance floor plan?• Did you maintain a maximum dining number of up to 6 people per table?[27]Following further correspondence, on 6 August 2021 the Appellant sent the “Z Reports” for the relevant days. His covering email also included: The following is my full response to your email of 16 March 2021. I will deal with points in the same order raised in your email.• I confirm that once a customer places the order, they would sit down at the table and it would take between 3 to 5 minutes for a member of staff to serve the food at the table.• The average spent was both for individuals and per table.• Yes it does.• Yes we did.• Please see attached copies of the Z-report covering the relevant periods.• As above. I do not intend and propose to copy all the receipts as it would take days if not weeks to copy and scan. However, the attached Z reports already provides figures and information which should allow you to carry out your investigation.• Please see attached copies of the bank statements covering the relevant periods.[28]On 23 September 2021 HMRC wrote again to the Appellant relevantly as follows: …… To reduce your burden, please send me 10 customer receipts for each EOTHO day you claimed as well as the electronic records for your purchase and sales ledgers previously requested. Please include some receipts over £30 for individual customers. These samples should be readily available and within your power and/or possession based on document retention requirement. I also require a further copy of your X/Z Roll receipts for dates 10-12 August 2020 & 17-19 August 2020, as the ones I have received are ineligible. Furthermore, I am having a bit of difficulty cross referencing your X/Z Roll receipts with the bank statements I have received. Please identify which payments going into the bank account relate to customer sales for the EOTHO period. If the business uses several accounts please provide bank statements for all bank accounts for the EOTHO period showing customer sales. Also can you confirm how/when cash payments are deposited into the bank account and if this is the correct account please identify these transactions. Additionally within the X/Z Rolls there is no indication of the EOTHO discount, or discount applied of any sort. Please explain how the EOTHO discount was shown and applied to customers and how you calculated your claim.[29]On 9 November 2021 HMRC wrote to the Appellant explaining that they intended to issue an assessment in relation to the Claims.[30]On 10 December 2021:(1) HMRC issued the Assessment; and(2) the Appellant responded to HMRC’s letter of 9 November 2021 objecting to the issuing of an assessment on the basis that he had provided the necessary information. It appears that the Assessment and the Appellant’s response of 10 December 2021 crossed (although nothing turns on this).[31]On 6 January 2022 HMRC wrote to the Appellant explaining that they had not received the information required and so the Assessment could not be changed.[32]On 18 March 2022 the Assessment was reissued due to referring to the wrong tax year initially.[33]On 10 November 2022 HMRC wrote to the Appellant. That letter included a replacement ‘View of the Matter’ in relation to the Assessment.[34]On 28 November 2022 the Appellant responded to HMRC’s 10 November 2022 letter. That letter covered: some confusion about the Assessment and associated penalties and made various points about seating capacity. It did not contain any further evidence.[35]On 20 December 2022 the Appellant wrote to HMRC. That letter: requested a review of the ‘View of the Matter’; addressed seating capacity again; and explained Moulin Rouge’s opening hours and the timing of the Z Reports.[36]On 2 February 2023 HMRC issued a Review Conclusion Letter which upheld the Assessment.[37]The Appellant subsequently appealed the Assessment to the Tribunal.[38]The Appellant’s self-assessment tax return (“SATR”) for 2019/20 states a turnover of £64,460.
discussion
[39]discussion Validity of the assessment By the time of the hearing it was not in dispute that the Assessment was made in time and was served on the Appellant. We agree with that position therefore we find that the Assessment met all the relevant formalities.
The Officer Conditions
[40]The Officer Conditions The subjective element of the Officer Conditions Officer Moss gave clear unchallenged evidence, which we accept, and therefore find as fact that she believed that the information available to her pointed in the direction that the Appellant had received EOHOS payments to which he was not entitled.
The objective element of the Officer Conditions
[41]The objective element of the Officer Conditions We are satisfied and find that Officer Moss’ belief was objectively reasonable ie it is one which a reasonable officer could form on the basis of the information available to her. That is because of, at the very least, the unexplained inconsistency as to gross sales between the Claims and the Z Reports which we explain in the next paragraph.[42]HMRC highlighted that to generate the Claims (£19,500) under the scheme qualifying sales of at least £39,000 would be required. In principle we agree. That is because the scheme allowed for claims that were the lesser of 50% or £10 per person. If all the discounts given were 50% then this would require sales of £39,000. The total number of customers forming part of the Appellant’s claim were 2,170. Therefore, if the average meal were over £20 (meaning the discount generated would be from the £10 and not 50%) then the sales required would be £43,400. The total gross sales (cash and card) recorded on the Z Reports were £35,353.07 (and on the Appellant’s evidence included take away sales that were not eligible under the scheme).[43]The Appellant also sought to argue that Officer Moss had considered his SATR for 2020/21 and a planning application in relation to Moulin Rouge’s premises. Under cross-examination Officer Moss confirmed that she had only considered the information she had received from the Appellant and so had in fact not considered them at all at the point she made the Assessment. We accept Officer Moss’ clarification which is also borne out by the documentary evidence. Therefore, this point can go nowhere and does not alter our conclusion above.[44]Therefore, we are satisfied that the Officer Conditions are met.
Was the Appellant operating the scheme?
[45]Was the Appellant operating the scheme? HMRC accepted, during the hearing, that the Appellant had been operating scheme. Therefore, because the Assessment covered all the EOHOS payments the Appellant had received HMRC accepted that the Appellant had been overcharged by the Assessment and we make that finding of fact.[46]This is a useful juncture to note the important point that on the Appellant’s own case the Claims were overstated. That is because he said that his staff had been giving everyone the maximum discount of £10 (rather than 50% of the value of the meal insofar as it qualified for EOHOS). The Appellant said that this was why he had offered to settle his appeal a number of times.[47]In light of the forgoing, the remaining issue was whether the Appellant could show how much he was overcharged by the Assessment. If the Appellant was not able to show by how much then then the Assessment will stand good. See 50(6) TMA, which applies by virtue of paragraph 9(3) schedule 16 FA 2020.
Can the Appellant show by how much he has been overcharged by the Assessment?
[48]Can the Appellant show by how much he has been overcharged by the Assessment? On this question, broadly put, the Appellant’s starting point was that a scientific approach could not be taken. He had made his offers to settle his appeal to HMRC on the basis of approximate figures. He did not advance a method by which we could rationally reduce the Assessment. For example, one of the Appellant’s submissions was that we should find that on the balance of probabilities he should repay 50% of the Assessment. One view might be that we can stop there and simply conclude that the Appellant has not discharged his burden. However, to do would be to ignore the evidence that we do have in front of us and so we proceed to consider it.
Records and/or documentary evidence
[49]Records and/or documentary evidence The guidance we set out in the Appendix makes clear what records HMRC at least expect in relation to EOHOS. These include records showing for each day the:(1) total number of diners (covers) who have used the scheme discount;(2) total value of all eat-in food and non-alcoholic drink sold where the scheme discounts were given; and(3) total value of the scheme discounts given and claimed for.[50]In our view a sensible starting point in considering whether the Appellant has shown how much he has been overcharged by the Assessment is by considering whether we have any evidence (records) of the above, or whether we have any evidence (records) that provide the information required to establish the numbers set out above. That is because we think if we had them the Appellant would be likely be able to establish the true value of his claim under the scheme and therefore how much he has been overcharged by the Assessment. [For completeness, we record that neither party suggested (sensibly in our view) that we simply rely on the information contained in the documents making the Claims.]
The total value of the scheme discounts given and claimed for
[51]The total value of the scheme discounts given and claimed for There was no documentary evidence before us as to this number each day or otherwise.
The number of diners (covers)
[52]The number of diners (covers) In relation to the number of diners (covers):(1) There was no documentary evidence before us as to this number each day or otherwise. [See below re the Z Reports.](2) The Appellant explained that he had been given these numbers by his manager (during the period where he was in Turkey). But that he did not know where they came from. Further, that even if he went through all the receipts (see further below re receipts) he would not know how many diners there were on each receipt (although it appears to us that it may be possible to make a reasonable guestimate depending on how much food and drink had been ordered).(3) The Z Reports referred to the following: (a) open table – we understood the Appellant’s evidence to be that a table is opened when a customer’s order is taken for eat in customers although it was not clear whether the number of open tables referred to the number of tables or individual customers; (b) hold table – we understood the Appellant’s evidence to be that when a table is reserved for a specific waiter it becomes a hold table; and (c) separate table – this is when customers wanted to pay separately. We considered these numbers in some detail as did the parties over the lunch break on the day of the hearing to see whether any permutation of them assisted in any way in corroborating the number of diners in the Claims. We note that the number of open tables was always less than for the period of each Claim. However, neither we nor the parties could discern a meaningful correlation with the number of diners in the Claims.(4) The Appellant also said that his staff were giving all diners the maximum discount of £10. If this was the case and the number of diners in the Claims were accurate then the total of the Appellant’s EOHOS would have been claim £21,700. The point here being that even a large apparent concession does not support the numbers of diners in the Claims.
The total amount of discount
[53]In relation to the total amount of discount each day or otherwise:(1) There was no documentary evidence before us as to this number each day or otherwise.(2) The information on the Z Reports does not explicitly provide the total discounts being provided to customers on an individual or global basis. Nor do they implicitly provide a clear or cogent route to establishing this number.
Receipts
[54]Receipts were mentioned at various points during the HMRC’s investigation and also during the hearing. From the correspondence set out above it is clear that the Appellant’s position during the investigation is that it would be too onerous to provide them/go through them. The Appellant did not take up HMRC’s offer to consider 10 sample receipts during the investigation and no receipts were provided during the course of the appeal. It may be that the receipts were key to the Appellant establishing by how much he was overcharged by the Assessment but they were simply not before us.
Other points made/evidence considered
[55]Other points made/evidence considered HMRC made a number of points that we understood to be seeking to persuade us that the Claims were inflated ie that in principal the Assessment should stand, they related to: the average discount per customer based on the information in the Claims; the increasing number of ‘deals’ on the Z Reports; and the high cash to card ratio during Covid where HMRC say generally you would expect more card payments. For the reasons set out above it is now common ground that the Appellant claimed more than he should have done. Therefore, we do not consider that we need to resolve these points (and doing so would not assist in any event determining by how much the Appellant has been overcharged by the Assessment).[56]The hearing bundle contained:(1) bank statements from the Appellant for the days of covered by the Claims; and(2) ‘Merchant Aquirer’ data from April 19 to March 23. The parties did not make any particular points about these documents and we could not obviously see any way in which they supported the Claims and so we say nothing more about them.
The Appellant’s grounds for appeal
[57]For completeness we refer to the Appellant’s grounds for appeal.[58]Insofar as Issue 1 – 3 in our view even if these were capable of defeating the Assessment they are not made out in any event as the issues they raise were dealt with in correspondence by HMRC (and are also dealt with in this decision).[59]Insofar as issue 4, the Wednesbury principle is a public law principle. Various cases establish that this Tribunal has no inherent supervisory jurisdiction which is required to consider such a principle, see for example Hok Ltd v HMRC [2012] UKUT 363 and Abdul Noor v HMRC [2013] UKUT 71. Therefore, we cannot consider it and even if we could we do not consider that the Appellant has drawn our attention to anything that suggests that this principle is engaged.
conclusion
[60]conclusion The overarching point made by HMRC is that the Appellant has not shown, on any sensible or rational basis, how much he has been overcharged by the Assessment. For the reasons set out above we agree and therefore the Assessment stands good.[61]For the reasons set out above we dismiss the appeal.
Right to apply for permission to appeal
[62]Right to apply for permission to appeal 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. Release date: 21 August 2026
order
• Operating hours were 11am until 10am during EOTHO• I had 4 employees working for me during EOTHO• I would say average spent was £30-£40 during EOTHO• No tables booked in advance. Most payments made by card and no tips added to card payments.• Orders were recorded at the counter• Our seating capacity is 78 but was reduced to 64 when applying social distancing measures.• Please see handmade drawing attached. This is not drawn to scale. This is rough table layout.• I would estimate average time spent was 20-30 mins.• EOTHO discount was shown to the client at the time of payment and the discount was reflected on the receipts.• [The Appellant’s mobile phone number.] Please do let me know if you need further information.