Commentary

A6.713 Discovery—burden of proof

Administration and compliance

A6.713 Discovery—burden of proof

A6.713 Discovery—burden of proof

The burden of proving that the conditions for the issue of a discovery assessment are met lies with HMRC. See Gaughan v Revenue and Customs Comrs1, where the Special Commissioners decided that HMRC had not discharged the burden of proving that there was a loss of tax.

See also Michael Burgess and Brimheath Developments Ltd2, where the Upper Tribunal found that discovery assessments should be reduced to zero, even though under-declarations were established. It found that HMRC had failed to discharge the burden of proving that the conditions for a discovery assessment were satisfied, and also that the First-tier tribunal had erred in law in not themselves making this finding. The result was that the assessments could not be regarded as valid and the appeals must

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