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Procedure.Tax
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N17: Evidence
Tribunal only considering documents it was referred to
"[8] We were provided with 11 electronic bundles of documentary evidence comprising (including statements from 49 witnesses) over 180,000 pages.
[9]In Swift & others v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [15] Gross LJ (with whom the Master of the Rolls and Christopher Clarke LJ agreed), dismissing an appeal in which the judge was said to have ignored “vast tranches” of evidence contained in 25 lever arch files which had not been put to the witnesses or referred to in closing submissions, said:
“The notion that the 25 files should simply be left available for the Judge to ‘dip into’ (untutored) is fanciful.”
[10] In Adelekun v HMRC [2020] UKUT 244 (TCC) the Upper Tribunal (Judges Raghavan and Brannan) said, at [29]:
“… It cannot be assumed that just because a document appears in a hearing bundle that the tribunal panel will take account of it; if a party wants the tribunal to consider a document then the party should specifically refer the tribunal to it in the course of the hearing (see Swift & others v Fred Olsen Cruise Lines [2016] EWCA Civ 785 at [15]). This is not least to give the tribunal adequate opportunity to consider and evaluate the document in the light of the reliance a party seeks to place on it, but also to give the other party the opportunity to make their representations on the document. That is particularly so where, as here, there were several hearing bundles before the FTT relating to the various previous proceedings and the one containing the relevant additional documents was voluminous comprising 434 pages.”
[11] In the light of these observations by the Court of Appeal and Upper Tribunal, our approach was not to “dip into” the voluminous evidence in the present case but to read all of the witness statements (which were “taken as read” as the evidence in chief of that witness) and consider those documents exhibited to the statements to which we were referred in submissions or which had been put to the 28 witnesses from whom we heard, either in person or remotely, between April and June 2022." (Sintra Global Inc v. HMRC [2022] UKFTT 365 (TC), Judge Brooks)
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Partnership existing only in the minds of the taxpayer
"[87] Even if we accepted that both Mr and Mrs Cooke understood there to be a partnership in existence, the evidence that this Partnership existed other than in their minds and in the minds of their professional advisers is extremely thin:
(1) None of the relevant documents to which the Partnership was alleged to be a party made reference to the Partnership, all were signed only in the name of Mr and Mrs Cooke.
(2) Mr Cannon referred to the tax returns and partnership accounts, but they are at best self-serving documents and cannot be treated as independent evidence that the Partnership existed. We note the reference in Shipley’s email of 14 December 2015 to the “forms requiring filing in order to create a property development partnership”, suggesting that the forms created rather than reflected the existence of the partnership.
(3) Added to this is the confusion even in Mr Cooke’s mind about when the Partnership actually started, exemplified by his email to HMRC of 2 February 2019 (when a date of 6 April 2015 is referred to, rather than the 17 September 2014 date) and his suggestion in his witness evidence that he had understood that the Partnership only needed to be decided before the tax returns were submitted in January 2016.
[88] In the face of this lack of evidence, we can only agree with HMRC’s characterisation of the Partnership as something which was suggested by Mr Cooke’s financial advisers and which existed only when the relevant tax and accounting forms were completed, but had no substantive existence in the real world.
[89] For these reasons we agree with HMRC that the Appellants have failed to demonstrate to the necessary standard that the Partnership existed at the relevant times, or at all." (SC Properties Ltd v. HMRC [2022] UKFTT 214 (TC), Judge Short)
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Adverse inference from failure to produce documentary evidence
"[36] Mr Carey also submitted that adverse inferences can be drawn from the absence of documentation. In Wetton v Ahmed [2011] EWCA Civ 610, Arden LJ stated as follows at [14]:
“[14] In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.”
[37] We were also referred to Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) per Leggatt J at [15] to [22] to similar effect.
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[40] The minimal amount of contemporaneous documentation provided by PPSL in respect of the Deals is notable. PPSL’s evidence is that such documentation was either not made in the first place or has been discarded. These are features which fall into the overall factual matrix and so are matters to be considered as part of our overall analysis of the facts. In the event of any circumstances in which we might accept that documentation upon a relevant matter would be expected, we must consider the reason for the absence of documentation and the credibility of the witness evidence relied upon. This does not mean that the absence of documentation gives rise to a sweeping inference that witness evidence which is uncorroborated by contemporaneous documents cannot be accepted. Insofar as Mr Carey invites us to make a broad inference of this nature, we resist such an invitation." (Peterborough Plant Sales Limited v. HMRC [2020] UKFTT 338 (TC), Judge Richard Chapman QC)
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No adverse inference from failure to provide evidence on matters not in dispute
"[55] [The taxpayer] submitted that it would be unjust to make adverse inferences from any perceived lack of evidence relating to facts and matters not in dispute. We agree. Therefore, for example, given that HMRC have accepted that Mr Batten went to Gibraltar to carry out duties under his contract of employment no adverse inference should arise as a consequence of the lack of documentation regarding his employment activities." (Batten v. HMRC [2022] UKFTT 199 (TC), Judge Bowler)
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