First-tier and Upper Tribunals: preparing for the tribunal: preparation of statement of case
The statement of case should clearly identify the matters in dispute to be decided by the tribunal. This could include the interpretation of a legal provision or case law, or a question of fact. It should also set out any other issues, such as disputed jurisdiction, late appeals or payment of tax/postponement.
The purpose of the statement of case is also to tell the customer what HMRC’s case is. So it needs to be comprehensive as the customer will rely on it to prepare their case for the tribunal, including the list of documents, see ARTG8390. If it is not, HMRC may be depriving the customer of a fair opportunity to assemble evidence in support of their appeal.
The statement of case should cover the following:
- Matter under appeal
The statement of case should clearly set out the matter in dispute, for example assessment, closure notice, Revenue Amendment, penalty notice. It should indicate whether the matter is solely one of principle, or whether the tribunal is to determine both the principle and the amount involved. It should also be made clear whether the matter is mainly one of fact or law or a mixture of both.
The statement of case should identify the appellant. Generally this is not in doubt, but in some cases it may be necessary to make this clear, for example where workers/employees are involved, or where more than one customer has the right of appeal. In such cases the statement of case should identify who appealed and who did not.
- Legislation and case law
The legislation and, if appropriate, case law should be set out. Where the tribunal’s caseworker decides it is necessary to refer to case law, they should explain why it is relevant to this dispute. Extracts from reported cases should be annotated with the case reference, including where the extract may be found within the judgement.
- Case history
The statement of case should include an outline of the case in chronological order, showing how it reached the current position. This should show if, for example, there has been a review, extensive negotiations, or whether some issue(s) have already been resolved. It is not necessary for this to be a detailed chronology of everything that has taken place in this case, but the statement of case should include sufficient detail to give an indication of what has happened in the lead up to the tribunal.
- Agreed facts
The statement of case should include a short statement of agreed facts and/or matters resolved, if any.
- Disputed facts / evidence
Unless the point at issue relates solely to the interpretation of legislation and case law, the statement of case should indicate the extent or nature of the disputed facts or evidence. This may be a general reference, for example to ‘unexplained bank deposits’ rather than identifying each individual disputed entry if they are numerous.
- HMRC’s case
The statement of case should set out HMRC’s arguments, for example ‘HMRC maintain the tax is due because ….’ It should also refer to the customer’s arguments and explain why HMRC considers them to be wrong.
The statement of case should also say on which party HMRC believes the burden of proof rests, for example in the case of penalties the burden is on HMRC to prove that a penalty is due, while in assessments or return amendments the burden is on the customer to prove that the amount of assessed tax or profits is wrong.
The statement of case should say what outcome we are seeking from the tribunal, for example ‘the appeal should be dismissed’. This is particularly important where HMRC’s original decision has been varied on review or in negotiations.
In some cases it may also be helpful to set out the implications of potential outcomes, for example whether there are other similar cases awaiting the tribunal’s decision on this appeal, or the impact on the appellant’s benefit entitlement in statutory payments cases.