| Precedent Z (earlier UT decision on burden in penalty appeals, 2022) |
Held that if a challenge to a penalty is made solely on the basis that the underlying assessment is wrong, the burden in relation to those elements remains on the taxpayer. |
Considered in-depth by the UT in the present case; the UT rejected Z as wrong/per incuriam, but the court in the present opinion concludes Zaman was correctly decided and supports allowing the Appellant's Ground 1. |
| Precedent D (FTT decision cited describing diversion fraud) |
Descriptive account of "inward diversion fraud" methodology used as factual background. |
Both Tribunals and this court adopt that factual description as a helpful outline of the alleged fraudulent process. |
| Precedent A (Awards Drinks Ltd v Tax Authority, 2021) |
Support for the proposition that in tax appeals generally the burden lies on the taxpayer to show the assessment is wrong. |
Referred to by FTT and UT when considering the general rule in tax assessment appeals; used to support the proposition that pleading fraud does not change the burden on assessment appeals. |
| Precedent K (Khan v Tax Authority, 2006) |
Explains that the burden lies on the taxpayer in relation to best-of-judgment assessments and that the burden does not change merely because allegations of fraud are involved; provides broader principle that where a statute gives a right of appeal against enforcement action, the burden normally lies on the appellant. |
Relied upon by the FTT and UT; the court identifies Khan as authoritative and binding on this point and treats its guidance as central to the question whether the legal burden can be imposed on the taxpayer. |
| Precedent B (Brady v Group Lotus Car Companies plc, 1987) |
Authority that the burden of proof on an appeal against a best-of-judgment assessment lies on the taxpayer and that this does not change merely because fraud is alleged. |
Cited by the FTT and UT; used to support the proposition that tax-assessment appeals carry a burden on the taxpayer. |
| Precedent King (King-related domestic decisions and Strasbourg follow-up) |
Demonstrates that penalty proceedings can be "criminal" in nature for Article 6(1) and that in some penalty contexts the legal burden has lain on the Revenue where fraud/dishonesty are central. |
Discussed as part of the Article 6 jurisprudence; cited to show circumstances in which Article 6 applies and to illustrate how burden allocations have been treated in complex cases with multiple penalties. |
| Precedent M (Massey v Tax Authority, 2016) |
Support for the proposition that in penalty proceedings HMRC bears the burden of proving default triggering the penalty. |
Referenced by the FTT as authority for the proposition that in penalty proceedings the Tax Authority bears the burden of proof on penalty matters. |
| Precedent I (Ingenious Games LLP v Tax Authority, 2015) |
Considered in review of authorities on burden of proof in tax appeals. |
Referred to by the UT among the cases supporting the general approach to the burden in tax appeals. |
| Precedent E (E Buyer UK Ltd v Tax Authority / Buyer UK Ltd v Tax Authority, 2017) |
Where dishonesty or fraud is pleaded, the Tax Authority must plead, particularise and prove it in civil proceedings. |
Cited by the Appellees to support the submission that where dishonesty/fraud is alleged, the Tax Authority must particularise and prove those allegations. |
| Precedent EuroW (Euro Wines v Tax Authority, 2018) |
Holds that certain reverse burdens in excise/duty contexts were compatible with Article 6 because of regulatory context and specific statutory wording (section 154(2) CEMA 1979). |
Relied on by both sides: Appellees invoke it to show penalty contexts can justify HMRC bearing burden; Appellant notes it was directed to a specific statutory reverse burden and that related dicta were obiter in the present context. |
| Precedent Kittel (Axel Kittel v Belgian State, C-439/04) |
European principle about link to fraud and the need to prove knowledge or connection with fraud in certain VAT contexts. |
Referred to by the UT when discussing exceptions where the Tax Authority must prove particular state of mind (e.g. knowledge of fraud). |
| Precedent Gilchrist (Gilchrist v Tax Authority, 2014) |
Principle that, as a tribunal of coordinate jurisdiction, a later UT should normally follow an earlier UT unless satisfied it was wrong. |
Referred to by the UT when explaining why it would normally follow an earlier UT decision but declined to follow Zaman because it concluded that decision was wrong in context. |
| Precedent Ferrazzini v State (ECtHR, 2001) |
Held that ordinary tax disputes generally fall outside Article 6(1)'s "civil rights and obligations" limb and do not engage the "criminal charge" limb. |
Adopted as foundational Strasbourg authority: the court uses it to distinguish which parts of proceedings fall within Article 6 and which do not. |
| Precedent Han (Han and others v Tax Authority, 2001) |
Domestic court decision holding that civil penalty proceedings under section 60(1) VATA engaged Article 6(1) "criminal charges" limb. |
Used to show that penalties can attract Article 6 protection; this is contrasted with Ferrazzini's exclusion of ordinary tax disputes from Article 6. |
| Precedent Georgiou (ECtHR, 2001) |
Provided criteria indicating when a penalty is a "criminal charge" (deterrent/punitive nature, substantial penalty) and accepted that, in practice, it may be difficult to separate penal and tax aspects. |
Used to support the approach that tribunals should consider proceedings to the extent they determine a criminal charge, acknowledging necessary overlap with tax assessments. |
| Precedent Engel (Engel v Netherlands) |
Engel criteria used to determine whether an offence is "criminal" for Article 6 purposes. |
Referred to in domestic reasoning about whether penalty proceedings attract Article 6 protection. |
| Precedent Bendenoun (Bendenoun v France) |
Illustrates that domestic classification as civil does not preclude Article 6 if the measure is punitive/deterrent. |
Referenced to show domestic labels are not determinative of Article 6 applicability. |
| Precedent Janosevic v State (ECtHR, 2004) |
Tax surcharge regime held to engage the "criminal charge" limb; court to consider proceedings to extent they determine a criminal charge. |
Adopted to underline the approach to severance and to assess Article 6 protection only to the extent necessary. |
| Precedent Jussila v State (ECtHR, 2009) |
Confirmed that tax surcharges can be "criminal" for Article 6 and emphasised that penalties differ from the hard core of criminal law; criminal guarantees need not apply with full stringency. |
Used to justify a nuanced approach to Article 6 in tax-penalty contexts and to acknowledge that tax penalties occupy a lower end of the criminal spectrum. |
| Precedent Sheldrake v DPP (House of Lords, 2004) |
Leading authority on reverse burdens in criminal law; sets out framework for assessing compatibility with Article 6 and for reading down to evidential burdens where necessary. |
Applied as the central domestic authority on the justifiability of reverse legal burdens and on the methodology for assessing proportionality and compatibility with Article 6. |
| Precedent Salabiaku v France |
Leading Strasbourg authority on the presumption of innocence and limits on presumptions adverse to defendants. |
Invoked in analysis of whether reverse burdens fall within reasonable/proportionate limits under Article 6. |
| Precedent Doorstep (Doorstep Dispensaree Ltd v Information Commissioner, 2024) |
Applied Khan, Brady and Awards Drinks to hold that on an appeal against a civil penalty under data-protection law the burden of proof was on the appellant to demonstrate the penalty could not stand. |
Used to show that courts have applied Khan-style reasoning beyond tax to other regulatory penalty regimes; cited in support of the proposition that appellant/taxpayer burden may apply to penalty appeals in certain contexts. |
| Precedent Omagh Minerals (FTT decision, 2018) |
Illustrates circumstances where the penalty part of proceedings engages Article 6 while the assessment part does not and where severance is appropriate. |
Relied on to show that severance of proceedings is often possible and appropriate so Article 6 need not apply to the underlying assessment. |
| Precedent Johnson v Gore Wood & Co |
Principles on issue estoppel and abuse of process relevant to whether an appellant may reopen underlying matters in penalty appeals. |
Referred to as a relevant limit on reopening previously determined issues or permitting abuse of process. |
| Precedent Kishore (domestic appellate decision) |
Discusses principles limiting reopening of prior determinations and the application of Johnson principles. |
Referred to when discussing the types of proceedings in which an appellant may challenge underlying liability. |
| Precedent PML Accounting (domestic appellate, dissenting passage cited) |
Recorded a view (in dissent) that burden in penalty proceedings lies on the Tax Authority because of the penal character of such appeals. |
Cited by Appellees for the proposition that penalty appeals generally place the burden on the Tax Authority; the court notes its limited precedential weight. |
| Precedent Bi-Flex Caribbean Ltd v Board of Inland Revenue |
Quoted for the principle that best-of-judgment assessments are prima facie right and remain so unless the taxpayer shows they are wrong and what corrections should be made. |
Used within the Khan analysis and accepted as foundational for the rule placing the burden on the taxpayer in best-of-judgment contexts. |
| Precedent Pegasus Birds (Customs & Excise Comrs v Pegasus Birds Ltd, 2004) |
Confirmed burdens in appeals against best-of-judgment assessments and cautioned against converting such appeals into attacks on Commissioners' exercise of judgment. |
Relied upon in the Khan discussion and in the court's assessment of the proper focus of assessment appeals. |
| Precedent Hill v Secretary of State |
Illustrates general presumption that an appellant must prove his case in enforcement appeal contexts (planning law analogue). |
Used in Khan to support the broader principle that appellants generally bear the burden in appeals against administrative enforcement decisions. |
| Precedent Nelsovil Ltd v Minister of Housing |
Planning enforcement appeal authority reflecting the principle that an appellant must prove his case. |
Referred to in the discussion of general principles about burden allocation in statutory appeals. |
| Precedent Traffic Commissioner v Muck It Ltd |
Example where burden allocation depended on construction of particular regulations and directives. |
Used to show that statutory context can displace the ordinary rule about burden of proof. |
| Precedents R v Benjafield and R v Rezvi (House of Lords cases) |
Discussed in relation to confiscation orders and the permissible reach of presumptions and reverse burdens. |
Referenced in Khan and in Sheldrake context as part of broader jurisprudence on reverse burdens. |