“The Tribunal found as a fact that Mrs Perrin honestly believed that she had submitted her return, but found that honest belief taken alone does not provide a reasonable excuse; instead, the Tribunal applied the approach set out by Judge Medd QC in The Clean Car Co Ltd v C&E Comrs [1991] VATTR 234 and by Judge Brannan in Coales v R&C Commrs[2012] UKFTT. 3 Mrs Perrin’s second ground is that in taking this approach the Tribunal wrongly rejected the view of some other Tribunals that an honest belief is enough for a person to have a ‘reasonable excuse’. I accept this is an issue on which different Tribunals have come to contrary conclusions and that it is appropriate for permission to appeal to be granted.”
“There is a well-recognised need for caution in permitting challenges to findings of fact on the ground that they raise this kind of question of law. … It is all too easy for a so-called question of law to become no more than a disguised attack on findings of fact which must be accepted by the courts. As this case demonstrates, it is all too easy for the appeals procedure … to be abused in this way. Secondly, the nature of the factual inquiry which an appellate court can and does undertake in a proper case is essentially different from the decision-making process which is undertaken by the tribunal of fact. The question is not, has the party upon whom rests the burden of proof established on the balance of probabilities the facts upon which he relies, but was there evidence before the tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the tribunal was entitled to make? Clearly, if there was no evidence, or the evidence was to the contrary effect, the tribunal was not so entitled. It follows, in my judgment, that for a question of law to arise in the circumstances, the appellant must first identify the finding which is challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and fourthly, show that that finding, on the basis of that evidence, was one which the tribunal was not entitled to make. What is not permitted, in my view, is a roving selection of the evidence coupled with a general assertion that the tribunal's conclusion was against the weight of the evidence and was therefore wrong.”
“When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that, this has been responsible for the determination. So there, too, there has been error in point of law. [Emphasis added] I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur.”
“If I apply what I regard as the accepted test to the facts found in the present case, I am bound to say, with all respect to the judgments under appeal, that I can see only one true and reasonable conclusion. The profit from the set of operations that comprised the purchase and sales of the spinning plant was the profit of an adventure in the nature of trade.”
“[73] The tribunal's decision in favour of Her Majesty's Revenue and Customs ('HMRC') was not an absolute answer to a pure question of fact or to a pure question of law. It was a judgment of mixed fact and law on the classification of Regular Pringles for value added tax ('VAT') purposes. 'Similar to' and 'made from' are loose-textured concepts for the classification of the goods. They are not qualified by words such as 'wholly' or 'substantially' or 'partly' which have crept into the legal arguments. Those words are not in the legislation itself. The tribunal's conclusions were on matters of fact and degree linked to comparisons with other goods and related to the composition of the goods themselves. Some aspects of the similarity of Regular Pringles to potato crisps are close to the centre, others are on the fringes. This exercise in judgment is pre-eminently for the specialist tribunal entrusted by Parliament with the task of fact finding and with using its expertise to make the first level decision, subject only to appeal on points of law. [74] For such an appeal to succeed it must be established that the tribunal's decision was wrong as a matter of law. In the absence of an untenable interpretation of the legislation or a plain misapplication of the law to the facts, the tribunal's decision that Regular Pringles are 'similar to' potato crisps and are 'made from' the potato ought not to be disturbed on appeal. I cannot emphasise too strongly that the issue on an appeal from the tribunal is not whether the appellate body agrees with its conclusions. It is this: as a matter of law, was the tribunal entitled to reach its conclusions? It is a misconception of the very nature of an appeal on a point of law to treat it, as too many appellants tend to do, as just another hearing of the self-same issue that was decided by the tribunal.”
“We find it difficult to accept that the reasonable taxpayer would not have read the submission receipt, and having done so, would not have noticed that the wrong year’s return had been completed.”
“In reaching a conclusion the first question that arises is, can the fact that the taxpayer honestly and genuinely believed that what he did was in accordance with his duty in relation to claiming input tax, by itself provide him with a reasonable excuse. In my view it can not. It has been said before in cases arising from default surcharges that the test of whether or not there is a reasonable excuse is an objective one. In my judgment it is an objective test in this sense. One must ask oneself: was what the taxpayer did a reasonable thing for a responsible trader conscious of and intending to comply with his obligations regarding tax, but having the experience and other relevant attributes of the taxpayer and placed in the situation that the taxpayer found himself in at the relevant time, a reasonable thing to do? Put in another way which does not I think alter the sense of the question: was what the taxpayer did not an unreasonable thing for a trader of the sort I have envisaged, in the position the taxpayer found himself, to do?... It seems to me that Parliament in passing this legislation must have intended that the question of whether a particular trader had a reasonable excuse should be judged by the standards of reasonableness which one would expect to be exhibited by a taxpayer who had a responsible attitude to his duties as a taxpayer, but who in other respects shared such attributes of the particular appellant as the tribunal considered relevant to the situation being considered. Thus though such a taxpayer would give a reasonable priority to complying with his duties in regard to tax and would conscientiously seek to ensure that his returns were accurate and made timeously, his age and experience, his health or the incidence of some 16 particular difficulty or misfortune and, doubtless, many other facts, may all have a bearing on whether, in acting as he did, he acted reasonably and so had a reasonable excuse.”
“Parliament has balanced the interests of the taxpayer with those of the Exchequer. A taxpayer may be spared a surcharge if the taxpayer has an excuse, but the excuse must be a reasonable one. The word ‘reasonable’ imports the concept of objectivity, whilst the words ‘the taxpayer’ recognise that the objective test should be applied to the circumstances of the actual (rather than some hypothetical) taxpayer.”
“(5) It is an offence for a person to have in his possession or under his control, without reasonable excuse – (a) an identity document that is false; (b) an identity document that was improperly obtained; (c) an identity document that relates to someone else…”
“The defendant was a Nigerian with indefinite leave to remain in the United Kingdom. She was found to have in her possession a false passport. This came to light when she attended a Job Centre in order to apply for a National Insurance number. She produced a valid current passport and an expired passport which was in fact false. The biographical section of the passport, which included the photograph, was found to be counterfeit. She claimed that she had no knowledge of that. She said that she had asked a friend who travelled regularly between the United Kingdom and Nigeria to obtain the passport for her, and it was her understanding that it was genuine. She contended that this belief 17 constituted a reasonable excuse for not2 having a passport in her possession within the meaning of subsection (5).”
“(1) It is an offence for a person with the requisite intention to have in his possession or under his control– (a) an identity document that is false and that he knows or believes to be false; (b) an identity document that was improperly obtained and that he knows or believes to have been improperly obtained; or (c) an identity document that relates to someone else. (2) The requisite intention for the purposes of subsection (1) is– (a) the intention of using the document for establishing registrable facts about himself; or (b) the intention of allowing or inducing another to use it for establishing, ascertaining or verifying registrable facts about himself or about any other person (with the exception, in the case of a document within paragraph (c) of that subsection, of the individual to whom it relates).”
“It does not, however, follow, as the prosecution contend, that lack of knowledge or belief may not be relevant at all to a defence of reasonable excuse. In our view it may be a relevant factor for a jury to consider when determining whether or not the defendant has reasonable excuse for possessing the document. A belief that a document is genuine might, for example, explain why it has not been thrown away or handed in to the police. It is capable of providing an explanation for the possession of the document. Of course, there may be circumstances where the explanation 2 In context, the word “not” appears to be a typographical error. 18 as to why the defendant has the document in his or her possession is simply not believed by the jury, or it may be that the jury accepts the explanation advanced but does not consider that it is reasonable in all the circumstances. But the concept of reasonable excuse is potentially a broad one, and we do not see why the circumstances in which the document was obtained, and which may cause the defendant to believe that it was genuine, should be ignored when considering whether an excuse for possessing it is reasonable or not.”
“The Court of Appeal… decided, albeit in a rather different context, that a genuine or honestly held belief can amount to a reasonable excuse for not doing something that a person is required to do.”
“A defendant must be allowed to say what his purpose was in possessing the documents in order to submit for the jury’s consideration his assertion that that purpose was an objectively reasonable one. The only exception is where his purpose, and thus his excuse, is one which no jury could find reasonable, as for example the excuse offered by the defendant G in R v G.” [Emphasis added.]
“What he has to show is that he had an objectively reasonable excuse for possessing something which Parliament has made it, prima facie, a crime for him to possess because of its potential utility to a terrorist.” [Emphasis added.]
“Ultimately, in this middle range of cases, whether or not an excuse is reasonable has to be determined in the light of the particular facts and circumstances of the individual case. Unless the judge is satisfied that no reasonable jury could regard the defendant's excuse as reasonable, the judge must leave the matter for the jury to decide.”
“If the claimant’s (honest) belief is, when viewed objectively, irrational or apparently unreasonable, that is a factor that might weigh in the forensic exercise of deciding whether the person claiming to hold the stated (honest) belief did in fact hold the stated (honest) belief. It is not a separate test to be applied in deciding whether an honest belief amounts to a reasonable excuse. If it was, it would inject an impermissible element of objectivity into an enquiry which is solely subjective, in the sense that it turns solely upon the state of mind or subjective belief of the relevant person. Accordingly, it is wrong in law to proceed on the basis that an honestly held belief would not amount to a reasonable excuse if, from an objective standpoint, it was considered that that belief was irrational or unreasonable. The objective analysis goes solely to the issue of credibility. If a Tribunal finds that a person, as a matter of fact, held a particular honest and genuine belief, that may amount to a reasonable 20 excuse (on appropriate facts) regardless of whether that belief would be characterised as irrational or unreasonable when viewed objectively.”
“The more surprising, outlandish or unreasonable the belief being asserted, the less likely it is that, as a matter of the necessary forensic exercise, the Tribunal will accept that any such belief was honestly held. Nonetheless, if, once that forensic exercise has been undertaken, the Tribunal accepts that a person honestly believed that an asserted (relevant) fact did exist, there is then no room for going on to consider whether a reasonable person would have held that belief. That is to confuse two separate and distinct stages of the enquiry.” [Emphasis added]
“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities.”
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