One of the Commissioners' primary functions is to establish
facts. Fact is that which is known to be true. The importance of
having all the facts and all the evidence put to them is the same
for every appeal. Only when this has been done can they apply the
law and come to a decision.
If the Commissioners misinterpret the law, or come to a
conclusion which contradicts the facts they have found, their
decision can be reviewed by the High Court (
Edwards v Bairstow and Harrison 36TC207). Once the
Commissioners have given their decision however, it is almost
impossible to add to the facts that they have found. This is
because the Courts are generally reluctant to refer matters back to
the Commissioners to find further facts or to give either side a
further opportunity to produce evidence (see for example
R v St Marylebone Commissioners (ex parte Shokrollah Hay)
57TC59). For this reason, if for no other, it is vital
that all the facts are brought out at the Commissioner' hearing.
In any event, you will not put the HMRC case properly unless
you ensure that all the facts are brought out. It is only the
particular facts and evidence put to them which the Commissioners
can consider in arriving at their decision. Arguments are not
facts, and you cannot even put arguments forward without the facts
which support them. You can invite the Commissioners to draw
inferences, but only if you have established the facts from which
those inferences can be drawn. Above all, you cannot rely on
impressions, surmise or conjecture as a substitute for facts.
