This deals with the summoning of witnesses. The Keith Revenue
Powers Committee recommended the abolition of the former
restriction that prevented HMRC summoning a servant or employee of
the appellant. It is now possible to summon anyone, including the
appellant's spouse. The Regulations do not specify that the General
Commissioner giving leave under this Section needs to be of the
Division which is to hear the appeal. Although the application is
made ex-parte, the Regulations do not direct that the General
Commissioner signing the witness summons be excluded from the
hearing of the appeal. That is to say, there is no corresponding
provision under the old Section 41(2) TMA 1970. Nevertheless,
common sense dictates that any Commissioner giving permission for
the issue of a witness summons should not hear the appeal or indeed
be present when the appeal is heard. Whilst this is a matter for
the Clerk, the Officer of HMRC should remind the Clerk of the name
of any Commissioner who has previously been involved in the case.
Regulation 4(2) gives details of the Witness Summons. No form
is provided for this and the Department of Constitutional Affairs
has not designed a form. Appeals Units have a suggested form. There
is no objection to making this available to Clerks to Commissioners
or appellants and their representatives. It is important to ensure
that the whole of Regulation 4 (all fourteen parts of it) is
printed on the back of the Notice.
Particular care must be taken with Regulation 4(2). It is the
responsibility of the person obtaining the Witness Summons to serve
it on the person who is to attend. You must therefore obtain the
signed Witness Summons from the Clerk to the Commissioners so that
you can effect Service. Service of documents is an important legal
matter and Service under this Regulation is excluded from the rules
at Regulation 26. If in doubt, the Witness Summons must be served
personally i.e. by hand. As an alternative Special Delivery or
Recorded Delivery may be used.
If you are conducting proceedings in Scotland or under
Scottish rules you may not need the special permission provided at
Regulation 4(5) as in Scotland. Witnesses may be treated as hostile
without permission. Please see Regulation 5(14) for the application
of these rules to Scottish appeals. Please note that in Scotland
Witness Summonses are referred to as citations.
A witness cannot be required to attend or give evidence
unless payment is made for reasonable travelling expenses or an
agreement is made prior to the Service of the Summons, to pay such
a sum at a different time. See Regulation 4(7).
