Barber
| Jurisdiction | UK Non-devolved |
| Judgment Date | 17 June 1992 |
| Date | 17 June 1992 |
| Court | Value Added Tax Tribunal |
VAT Tribunal
The following cases were referred to in the decision:
Bill Hennessy Associates Ltd VAT(LON/87/640) and (LON/87/709) No. 2656; (1988) 3 BVC 1362
International Language Centres Ltd v C & E Commrs VAT(1983) 1 BVC 545
Jeudwine (1977) VATTR 115
Sneller VAT(LON/87/124) No. 2556; (1987) 3 BVC 662
Assessment - Two assessments - Part of second assessment duplicated part of first - Duplicated elements subsequently eliminated by reduction of second assessment - Whether second assessment entirely invalid - Value Added Tax Act 1983,Value Added Tax Act 1983 schedule 7 subsec-or-para 4Sch. 7, para. 4.
The issue was whether the commissioners were entitled to eliminate elements of an assessment that had been included in a previous assessment covering part of the same period so that the remainder of the second assessment was still valid.
The appellant commenced business on 1 February 1987 and was registered for tax from that date. Following a control visit in 1988 an assessment was issued covering four separate three-month periods from 1 March 1987 to 28 February 1988. The assessment was based upon discrepancies detected from an examination of the appellant's records and explanations arising therefrom.
Another officer visited the appellant in June and August 1990 and because she found a discrepancy between the amount of the appellant's business income and the amount declared on the return she issued a global assessment dated 7 November 1990 covering the period from 1 February 1987 to 31 October 1989. Two reductions of the amount assessed were made, the first being in respect of tax which could be identified specifically as having been included in the first assessment and which was therefore duplicated. The second reduction was made because the commissioners accepted that all of the tax assessed by reference to unidentified income before 1 March 1988 and included in the second assessment should be removed, because even if the first assessment did not include that tax the commissioners accepted that evidence sufficient to justify its inclusion in the first assessment might have been available to them at that time.
The appellant contended that because the second assessment included the period covered by the first assessment and there was no new evidence available to the commissioners at that time it failed, not merely in relation to the periods included in the first assessment, but altogether.
The commissioners maintained that correction of the second assessment, by elimination from it of the tax included in the first assessment and tax on unidentified income arising during the period included in the first assessment, was sufficient and there being consequently no duplication in the second assessment it was valid.
Held, allowing the taxpayer's appeal:
The assessment in question had not been made to the best of the commissioners' judgment and was not valid and could not be saved by elimination from it of the incorrect elements by means of a reduction of it. The only course open to the commissioners if they discovered that an invalid assessment had been issued was to withdraw it and, if still in time, to issue another, correct, assessment in its place.
The commissioners' power to raise assessments is regulated byValue Added Tax Act 1983 section 38sec. 38 of, andValue Added Tax Act 1983 schedule 7Sch. 7 to, theValue Added Tax Act 1983 [not reproduced here].
There was no material before me which suggested that, in relation to the periods included in the first assessment, Mrs Ashmore [Customs officer] saw documents, or was given information, not made available to Mr Pratt [Customs officer] and I find as a fact that no new "evidence of facts" relating to the accounting periods included in the first assessment came to the commissioners' knowledge after the first assessment was raised. The commissioners did not contend the contrary in relation to the tax which was duplicated by the second assessment. Although Mr Buttress [for the commissioners] raised some arguments (to which I shall return) regarding other evidence seen by Mrs Ashmore I do not consider that the commissioners, having agreed to reduce the second assessment upon the basis that evidence relied upon by Mrs Ashmore may have been available to Mr Pratt, can now be heard to argue that such evidence was not in fact available. I further find as a fact that the "evidence of facts" seen by Mr Pratt was "sufficient in the opinion of the commissioners to justify the making of the [first] assessment" since it was on that very evidence that the assessment was based.
Mr Parkinson [for the taxpayer] suggested during the course of argument, though without really developing the point, that the second assessment, because of Mrs Ashmore's failure to realise that there was some duplication of the tax assessed, was not made to the best of the commissioners' judgment. In my opinion, there is substance in that suggestion. There were, in fact, three significant errors in the...
To continue reading
Request your trial
-
Georgiou and Another (t/a Marios Chippery) v Commissioners of Customs and Excise
...The following cases were referred in the decision: Argosy Co Ltd v IR Commrs WLR[1971] 1 WLR 514 Barber VAT(MAN/91/541) No. 7727; [1992] BVC 883 Commissioner of Income-Tax, United and Central Provinces v Badrida Ramrai Shop, Akola, Owner Laxminarayan Badrida Shrawagi of Akola(1937) 64 LR In......
-
The Far East Restaurant;
...referred to in the decision: Babber t/a Ram Parkash Sunderdass VAT(LON/89/341) No. 5958; [1991] BVC 789 Barber VAT(MAN/91/541) No. 7727; [1992] BVC 883 Bill Hennessy Associates Ltd VAT(LON/87/640) and (LON/87/709) No. 2656; (1988) 3 BVC 1362 Burford v Durkin (HMIT) TAX[1989] BTC 540. Grunwi......
-
Foster and Another t/a The Watersplash Hotel
...Tribunal Foster & Anor t/a The Watersplash Hotel The following cases were referred to in the decision: Barber VAT(MAN/91/541) No. 7727; [1992] BVC 883 Bill Hennessy Associates Ltd VAT(LON/87/640) and (LON/87/709) No. 2656; (1988) 3 BVC 1362 Jeudwine (1977) VATTR 115 Kyriacou VAT(LON/92/2098......
-
SAS Fashions Ltd
...referred to in the decision: Babber t/a Ram Parkash Sunderdass VAT(LON/89/341) No. 5958; [1991] BVC 789 Barber VAT(MAN/91/541) No. 7727; [1992] BVC 883 Bell (1979) VATTR 115 Din and Din t/a Indus Restaurant VAT(1984) VATTR 228; (1984) 2 BVC 205,131 Grunwick Processing Laboratories Ltd VAT(L......