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Banks saves a penalty: burden of proof again

Banks saves a penalty.  Not Gordon, of course: that would scarcely be news (though at age 76 it would be surprising).  No, this is one Andrew Banks; and the penalty in question is that sought to be imposed by HMRC on his filing of an incorrect personal tax return.  And the most notable thing about the case is that one would have estimated Mr Banks’ chances of success before the Tribunal as on a par with England’s chances of winning the World Cup this year.  But win he did: so perhaps Mr Hodgson and the lads should not give up hope just yet1.

The facts were simple: Mr Banks’ income came principally from two employments, neither of which appeared on his return, filed on-line.  HMRC claimed that the omission was careless: Mr Banks insisted that he had included the information but that HMRC’s systems had failed to capture it.  The Tribunal judge observed, correctly, that the burden of proof lay with HMRC; and that since HMRC had not “established with sufficient certainty that if the Appellant did not complete the employed income pages the system would necessarily show this” the balance of probabilities was that HMRC’s systems were at fault and Mr Banks had not been careless.

Luck was undoubtedly with Mr Banks: we suspect that 99 judges in 100 would have found for HMRC.  But never underestimate the importance of the burden of proof.

For more on winning, contact our team.  Even if you’re Uruguayan, Italian or Costa Rican. (As for Gordon Banks: though unlikely to play in this year’s World Cup, he did have the honour of passing the London 2012 Olympic Torch to our very own Marjorie Bremner.)

1 They can now – Ed

David Whiscombe

Consultant

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