Morgan v R & C Commissioners
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 2008 |
| Date | 20 November 2008 |
| Court | Special Commissioners (UK) |
special commissioners decision
Colin Bishopp
The taxpayer in person
John Daley, HM Inspector of Taxes, for the Respondents
National insurance - married woman paying contributions at reduced rates - whether she had elected to do so - challenge to decision by HMRC that she had done so - election, if made, destroyed - other evidence considered - on balance of probabilities, election made - appeal dismissed
A special commissioner dismissed an appeal by a married woman against a decision regarding her National Insurance contributions (NICs) where it could not be said, on the totality of the evidence, that she had discharged the burden of satisfying the tribunal that the decision was wrong. In all the circumstances, it was more likely than not that the Revenue's records reflected what actually happened.
The taxpayer appealed against a decision of Revenue and Customs that, from 9 October 1967 to 8 April 1975 she was not liable to pay NICs, and that from 6 April 1975 to 5 April 1980 she was liable to pay contributions at the married women's reduced rate. The Revenue contended that in October 1967 the taxpayer had signed an election by which she chose to pay contributions at the special rate then available to married women while the taxpayer contended that she did not.
The Revenue also contended that the taxpayer had revoked that election in April 1980 and, again, she said she did not. It was clear that the taxpayer did in fact pay married women's contributions throughout the relevant period, in those weeks in which she was working. The issue was the measure of the taxpayer's entitlement to state retirement pension.
The Revenue acknowledged that errors occurred from time to time in National Insurance records but said the error rate was low, to the extent that in Gutteridge v R & C CommrsSCD(2006) Sp C 534 and Whittaker v R & C CommrsSCD(2006) Sp C 528, both cases in which married women were challenging the Revenue's claims that they had elected to pay reduced rate contributions, other special commissioners had accepted that the Revenue's records were reliable. They pointed to the consistency of all the available documentary evidence, showing that every employer in the relevant period had deducted contributions at the reduced rate, and to the fact that, despite her many opportunities to do so, the taxpayer had not challenged or even questioned the fact that she was paying reduced contributions.
Whether the taxpayer had established that, on the balance of probabilities, the decision against which she had appealed was wrong.
The special commissioner (Colin Bishopp) (dismissing the appeal) said that the Revenue's arguments were compelling and, were the appeal to be decided on documentary evidence alone, they would almost certainly be conclusive. However, the taxpayer's oral evidence, albeit unsworn, was persuasive. She was a convincing witness and her protestations that she had signed no election, and had not entered into the four disputed periods of employment, were convincing in as much as they properly represented the taxpayer's belief.
Even though she had to establish a negative, it was for the taxpayer to satisfy the tribunal, on the balance of probabilities, that the decision against which she had appealed was wrong. The tribunal had to balance the evidence available and decide where the truth was more likely to lie. In all the circumstances, it was implausible that an election would have been recorded, whether or not correctly, in October 1967 if the taxpayer had made no election at all at that time. It seemed more likely than not that, despite the medical condition at that time to which she attested, the taxpayer did return the form CF9 in or about October 1967. An election was not restricted to a woman in employment and so the taxpayer's convalescence was not significant evidence against her having made an election at that time.
It was also difficult to understand how a further error occurred when a clerk recorded that the taxpayer had changed her election, in 1980 when she said she had made no such election. It was also surprising that, on as many as three occasions, the taxpayer was shown to have worked for employers for whom she believed she did not work, yet who had correctly recorded both her name and her National Insurance number. It was conceivable that someone had masqueraded as her, though it was not clear what might be the purpose of doing so. Though the taxpayer was not trying to mislead, her recollection was not so reliable that it should be preferred to the available documentary evidence.
1. This is an appeal by Mrs Margaret Ann Morgan against a decision, set out in a notice dated 16 January 2007, that from 9 October 1967 to 8 April 1975 she was not liable to pay national insurance contributions, and that from 6 April 1975 to 5 April 1980 she was liable to pay contributions at the married women's reduced rate. HMRC contend that in October 1967 Mrs Morgan signed an election by which she chose to pay contributions at the special rate then available to married women while Mrs Morgan contends that she did not. HMRC also contend that Mrs Morgan revoked that election in April 1980 and, again, Mrs Morgan says she did not. What is clear is that Mrs Morgan did in fact pay married women's...
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Evans
...the authorities of Gutteridge v R & C CommrsSCD(2006) Sp C 534, Whittaker v R & C CommrsSCD(2006) Sp C 528 and Morgan v R & C CommrsSCD(2008) Sp C 722 in support of their contention that the records were reliable. 13.Mrs Evans returned to employment during the 1980/81 tax year with Tameside......
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Prochazka
...more likely to be an account of faulty recollection than of a correct one. We were also referred to the case of Morgan v R & C Commrs SCD(2008) Sp C 722 in which the Special Commissioners preferred HMRC's written records to Mrs Morgan's claim not to have signed an election to pay contributi......