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Devine v Revenue & Customs [2011] UKFTT 404 (TC) (22 June 2011)
URL: http://www.bailii.org/uk/cases/UKFTT/TC/2011/TC01259.html
Cite as:
[2011] UKFTT 404 (TC)
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Peter Devine v Revenue & Customs [2011] UKFTT 404 (TC) (22 June 2011)
INCOME TAX/CORPORATION TAX
Sub-contractors in the construction industry
[2011] UKFTT 404 (TC)
TC01259
Appeal number
TC/2010/03973
Taxes
Management Act 1970 – Deposits to accounts in excess of declared CIS income –
Discovery assessments raised – Appellant's failure to provide explanation in
relation to excess credits – Assessment upheld as valid - Appeal Dismissed
FIRST-TIER TRIBUNAL
TAX
PETER
DEVINE Appellant
-
and -
THE
COMMISSIONERS FOR HER MAJESTY’S
REVENUE
AND CUSTOMS ("HMRC") Respondents
TRIBUNAL: IAN WILLIAM HUDDLESTON, TRIBUNAL JUDGE
MISS PATRICIA
GORDON
Sitting in public at Bedford
House, Belfast on 14 April 2011
The Appellant did not appear
Mrs. Paula O'Reilly for HMRC
© CROWN COPYRIGHT
2011
DECISION
Appeal
1. This
is an appeal against assessments raised under the Taxes Management Act 1970. A
discovery assessment was raised against the Appellant for the year to 5 April
2004 following an enquiry which was opened on the 28 February 2005. Subsequent
to that enquiry a discovery assessment was also raised in respect of the prior
year to the 5 April 2003.
2. The
Appellant did not appear in person, but the Tribunal having confirmed that
papers had been served on him, decided that it was in the best interests of
justice to proceed and elected to proceed to Rule 33 of the Tribunal Rules.
Facts
3. The
facts of the case are as follows.
4. The
Appellant commenced self employment in the United Kingdom on the 15 July 2002
as a sub-contractor. On the 28 February 2005 an enquiry was opened under
Section 9(a) of the Taxes Management Act 1970 into Mr. Devine's return for the
year ended 5 April 2004.
5. In
correspondence with Mr. Devine's agent, Kelly & Co., HMRC were advised that
very little information in support of the submitted accounts was available. In
that telephone conversation, HMRC were advised that the Appellant used two bank
accounts, one jointly held account with his wife, and the other in his wife's
name.
6. During
a meeting which was held with the enquiry officer on the 9 October
2007 Mr. Devine stated that payments were made to him weekly by cheque, and
that these were deposited either in the joint account, or in his wife's account
as required.
7. As
a result, statements for the accounts were sought and obtained from the
Appellant and, following analysis (and having excluded the wife's wages and a
tax refund) the analysis disclosed that credits exceeded the Appellant's
vouched Construction Industry Scheme ("CIS") income by £4,450. After
that discovery, Mr. Devine's agent, Kelly & Co., accepted that there was an
error on the spreadsheet of relating to the CIS vouchers, and that turnover had
been understated.
8. Turnover
for the year was therefore increased by £6,032 based on the excess credits to
the accounts in excess of declared income with a corresponding tax credit of
£1,085.84.
9. A
closure notice was issued on the 29 January 2007 increasing the turnover figure
to agree with the CIS income and to include the excess lodgements to the bank
account, plus an estimate made by HMRC for cash earned, but not lodged to the
bank account.
10. Based on that
approach for 2003/4, discovery assessments were issued on the 30 January 2007
under Section 29 of the Taxes Management Act for the years 2000 / 2001 and 2002
/ 2003 using the retail prices index to scale back the alleged excess bank
lodgements and cash receipts and, therefore, assumed turnover. On the 1
February 2010 following an independent review, the 2003/2004 assessment was adjusted
to include only the increase on the CIS income and the excess lodgements to the
bank accounts of £4,450. As result of the same review, the discovery
assessments for the years 2000 / 2001 and 2001 / 2002 were reduced to nil. The
assessment for 2002 / 2003 was adjusted based on the assessment 2003/4, but
reduced to reflect RPI, and then apportioned from the stated date of the
commencement of self-employment, ie. 22 July 2002, resulting in a figure of
£3,000.
11. The Appellant's
case, by reference to the documents submitted to the Tribunal, appears to explain
the discrepancy in the cash lodged to the bank accounts as against the CIS
income by reference to two factors:
(1)
in the first place, the Appellant suggested that the additional
lodgements came from an insurance claim received by his wife. He provided copy
correspondence to show that the amount of the claim was £3,500, but HMRC's
position on that point is that the documentation showed that the date of the
event was 24 October 2004 and therefore some six months after the end of the
tax year in question;
(2)
the Appellant, it would appear, has also suggested that the balance of
£950 (ie. £4,450 minus the £3,500 attributable to the insurance claim) came
from gifts to his children made by family members. HMRC's position is that no
evidence has been made available to support that statement.
The Respondent's Case
12. HMRC contends
that:
(1)
in the absence of business records the figure for turnover is
unsubstantiated;
(2)
that for 2003/4 the amount of £4,450 represented additional lodgements
to the accounts having excluded the wife's wages and a tax refund for the
enquiry year;
(3)
that the proffered explanation of the insurance claim had not been
accepted because the event in respect of which the insurance was paid did not
take place until the 24 October 2004, ie. six months after the end of the
enquiry year;
(4)
that there was no single lodgement of £3,500 to either bank account in
the period, and that the sums on which HMRC focused arose as an aggregate of
smaller deposits to the account throughout the relevant enquiry period;
(5)
that there was no additional explanation or evidence regarding the
contention that £950 was attributable to gifts made to the children.
13. On that basis,
HMRC contends that without documentary evidence to show the source of funds, it
is reasonable to assert that the funds were attributable to Mr. Devine's
business, and that the assessments for both tax periods have been raised to
best judgement on that basis, under Section 29 of the Taxes Management Act
1970.
Decision
14. In cases such as
these the onus of proof falls squarely upon the Appellant to produce evidence
to disprove the assessments which have been raised by HMRC on the information
available to them.
15. In this case,
the Tribunal finds that there were excess lodgements over the known net CIS
income (as vouched) for the year 2003/4. It therefore follows that it is for
the Appellant to establish that these lodgements did not come from business
income. From the papers in front of the Tribunal the Appellant has quite
simply failed to discharge that onus of proof.
16. It follows that
the Tribunal finds that the sums in question are business receipts, and further
finds that:
(1)
both the assessments for the years to 5 April 2004 and 5 April 2003 have
been properly raised on a sensible and logical basis;
(2)
that for the earlier year it was appropriate to scale the figures back
to reflect RPI.
17. The assessments,
therefore, fall within the powers of HMRC and should be upheld.
18. In these
circumstances, the appeal is dismissed.
19. This document
contains full findings of fact and reasons for the decision. Any party
dissatisfied with this decision has a right to apply for permission to appeal
against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal)
(Tax Chamber) Rules 2009. The application must be received by this Tribunal
not later than 56 days after this decision is sent to that party. The parties
are referred to “Guidance to accompany a Decision from the First-tier Tribunal
(Tax Chamber)” which accompanies and forms part of this decision notice.
20. No order as to
costs.
IAN WILLIAM HUDDLESTON
TRIBUNAL JUDGE
RELEASE DATE: 22 June 2011
