Deals with evidence and procedure. Under Regulation 15(2) the
Tribunal can determine the manner in which the Hearing is
conducted. Quite often the Chairman will ask HMRC to outline the
case. If this happens, the Inspector must deal briefly and
accurately with the issues, without giving any evidence for the
Crown.
Sometimes, particularly when the appeal is against specific
refusal by HMRC (such as an appeal against a refusal to grant a
gross payment certificate to a sub-contractor in the construction
industry, or an appeal against a formal refusal for loss relief),
it is convenient for the Crown to run its case first. This, in a
sense, sets up the target that the taxpayer has to hit. However, it
is important not to lose sight of the fact that the onus of proof
will not alter.
If, at the request of the Tribunal, or on the suggestion of
either party, the Crown puts its case first, the Inspector must
always ensure that the party having the onus of proof has the last
word. In respect of penalty proceedings, the onus of proof is
firmly with the Crown which is entitled, not only to open the
proceedings, but also to the last word.
Regulation 15(5) enables the Tribunal to receive evidence
orally or by affidavit. Since the Woolf Reforms affidavits are now
called 'Statements of Truth' and are usually in a prescribed form.
The Tribunal can require, under this Regulation, the attendance of
a witness who has made an affidavit or an oral statement recorded
in a document, providing that the person is within the jurisdiction
(i.e. the United Kingdom of Great Britain and Northern Ireland). If
an affidavit which is disputed is produced by the other side, and
the person concerned is not available to be summoned or is outside
the jurisdiction, you are entitled to make an appropriate comment
in your closing speech. The authority for so doing is at Regulation
15(3)(d). This is an important part of advocacy - commenting on the
absence of evidence. Evidence that cannot be subjected to
cross-examination is much less persuasive and much less valuable
than that which has been tested in the usual manner.
Regulation 15(6) compels the Tribunal to receive evidence
which would be admissible in a Court of Law (i.e. admissible under
the various Civil Evidence Acts). The Tribunal may also receive
evidence of facts which appear relevant even though they might be
barred from being adduced in a Court of Law. Whilst this might seem
to be opening a 'barn door' on evidence, Regulation 15(4)
authorises the Tribunal to sift the evidence by means of assessing
its weight and truth, taking into account its nature and source and
the manner in which it is given. Evidence that is given, for
example, only from the mouth of an accountant and not from an
appellant directly, can be the subject of severe adverse comment in
a closing speech. If the appellant declines to attend and merely
sends his accountant or representative to the Hearing, you are
entitled to comment that first hand evidence has not been submitted
to the Tribunal and has not been available for cross-examination.
Regulation 15(7) permits the Tribunal to require the evidence
to be given on oath or affirmation. It is customary, if one witness
is sworn, for all witnesses to be sworn or affirmed.
