VATCEP2060 - Liability to a Civil Evasion Penalty: Burden and standard of proof
Burden of proof
Section 60(7) of the VAT Act 1994 provides that the burden of
proof of liability to a section 60(1) civil evasion penalty lies
upon the Commissioners.
The burden of proof in respect of all other matters,
including mitigation of the penalty, is upon the trader. However,
if an appellant adduces evidence to show that a larger reduction,
by way of mitigation, should have been made, it would then fall to
the Commissioners to satisfy the tribunal that such evidence does
not give rise to the further reduction claimed by the appellant. It
is important, therefore, that the discretion to mitigate is
exercised in a proper manner.
Standard of proof
The standard of proof required in civil cases is proof on a
balance of probabilities.
Confusion has arisen from certain civil cases where Judges,
lawyers or other commentators have talked of requiring a
“high degree of probability” for example, in Ghandi
Tandoori Restaurant (LON/88/369Y).
In the appeal by Ghandi Tandoori Restaurant (LON/88/369Y),
the tribunal chairman considered what standard of proof should
apply and concluded
“... we can see no reason why that standard [balance
of probabilities] should not apply in cases such as this. Because
the issue of dishonesty by the taxpayer arises and because the
consequences of a finding of dishonesty give rise to potentially
severe penalties, we consider that we should not be satisfied with
anything less than a high degree of probability.”
This has led some to conclude that there is a further or
intermediate standard of proof in the more serious civil cases.
However, this is a misinterpretation of the true legal position.
Legal advice is that in the more serious civil cases the
nature, quality and weight of evidence to satisfy the civil
standard of proof (i.e. tip the balance of probabilities) is
commensurably increased. Amongst these more serious cases are those
where dishonesty has to be proved, such as VAT civil evasion cases.
Extra evidential ingredients are then required to tip the balance
of probabilities because an act involving dishonesty will, in the
nature of things, be improbable of a normal person.
This advice is consistent with the judgements made in the
Court of Appeal Case of Mohammed Siddiq Khan v HMRC [2006] EWCA Civ
89, CA which cited from Re H [1996] AC 563, HL:
Balance of probabilities – in applying this civil
standard of proof we have to take into account the seriousness of
the allegation. So, when assessing probabilities the court will
have in mind the factor, that the more serious the allegation the
less likely the event occurred and hence the stronger should be the
evidence, before the court concludes that the allegation is
established on the balance of probabilities .
The decisions make it clear that there is no intention for a
further or intermediate standard of proof to be applied.
