The Commissioners have the power to summon a witness either to
give evidence or to produce documents in his possession, on the
application of a party to the appeal. If possible, the question of
whether a summons should be issued should be dealt with at a
preliminary hearing (see AH0665).
The regulation makes it clear that any person who is summoned
is the witness of the party at whose request he was summoned (the
summoning party). He may not be cross-examined by that party except
in the very rare circumstances where the Commissioners decide he
should be treated as a hostile witness. `Hostile' in these
circumstances has the legal meaning that the witness bears a
hostile `animus' (intent or motive) to the summoning party and so
may not give his evidence fairly or with a desire to tell the
truth. In other words the witness is being deliberately unhelpful
and uncooperative to the tribunal and the party calling him. It is
not enough that the witness is merely being unhelpful.
A witness who is summoned cannot be compelled to give
evidence or produce documents which he could not be compelled to
produce in a court of law (see AH0720 for further advice on what
this means in practice).
A witness who has been summoned is entitled to apply to the
Commissioners to set the summons aside but the summoning party is
entitled to be heard on any such application. If a witness who has
been summoned fails to attend the hearing, or attends but fails to
be sworn or affirm, or fails to answer any lawful question or
produce required documents, then the Commissioners may award a
penalty against him.
In the case of
Tilbury Consulting Ltd (SPC379/03) the agent for
the appellant company objected to the HMRC’s application for
a witness summons and argued that if a summons were issued there
would be a commercial risk to the appellant company. The Special
Commissioners decided that although they have discretion as to
whether to issue a witness summons, the presumption must be that
they will grant such an application. The Special Commissioners also
gave examples of circumstances in which an application might be set
aside.
In Scotland, a witness summons is called a witness citation
and sub-paragraphs (4) and (5) of the Regulation (not
cross-examining your own witness and hostile witness) do not apply.
In Scotland, the expression `hostile witness' has no technical
meaning. When a witness in a Scottish case gives evidence damaging
to the summoning party, that party is free to challenge the
witness's evidence by suggesting to him that in specified respects
it is mistaken, unreliable or untruthful, and may ask the
Commissioners to disbelieve any part of it. He does not require the
leave of the Commissioners to do this.
Normally it is not necessary to ask the Commissioners to
issue a formal summons as each side will make arrangements for its
own witnesses to attend voluntarily. However it can happen that a
potential HMRC witness who is willing to give evidence may prefer
to do so under the formality of a summons. In those circumstances
you should ask the Clerk to arrange for a summons to be signed by
the Commissioners. It is then your responsibility to serve the
summons on the witness and they must be given at least seven days
notice of the hearing.
The HMRC is responsible for meeting the expenses of any
witness who attends a hearing to give evidence for the HMRC
(whether voluntarily or under compulsion of a summons) and these
can include travel, subsistence and reimbursement of any loss of
earnings. You should ask for a detailed claim and this should be
paid from the local budget. In any case where it appears that the
expenses of a particular witness are likely to be substantial you
should consult Central Policy: Tax Administration Policy before
making any firm arrangements for that witness to give evidence for
the HMRC.
You should also consult Central Policy: Tax Administration
Policy, in any case where a potential and vital HMRC witness
indicates he is not prepared to give evidence.
