Anandpreet Singh Powar v The Commissioners for HMRC

An appeal from the First-tier Tribunal lies only on a point of law. Permission should be refused unless the proposed ground has a realistic prospect of success and identifies an arguable, material legal error.

A challenge to findings of fact under Edwards v Bairstow requires identification of the challenged finding, its significance, the relevant evidence, and why the tribunal was not entitled to make the finding. It is not a permissible appeal merely because the evidence might have supported a different conclusion. An appeal is not a rehearing or a second opportunity to adduce evidence.

The Applicant appealed to the Upper Tribunal for permission to appeal against the First-tier Tribunal’s decision, released on 17 May 2024, dismissing his appeal against a personal liability notice issued by HMRC. The First-tier Tribunal had found that transactions of a company of which he was sole director and shareholder were connected with fraudulent VAT evasion, that he knew or should have known of that connection, and that the resulting inaccuracies were deliberate.

The First-tier Tribunal refused permission on 19 July 2024. Permission was then refused on the papers by the Upper Tribunal on 14 October 2024. Following an oral hearing, the central issue was whether the First-tier Tribunal had made an arguable and material error of law under Edwards v Bairstow in finding that the Applicant should have known, or actually knew, of the fraudulent connection.

1. Permission refused. The Applicant did not identify any arguable error of law in the First-tier Tribunal’s decision.
2. Under section 11 of the Tribunals, Courts and Enforcement Act 2007, an appeal lies only on a point of law. The proposed argument must have a realistic, rather than fanciful, prospect of success and must concern an error material to the decision.
3. An Edwards v Bairstow challenge does not permit the Upper Tribunal to reconsider whether factual findings were right, whether they were against the weight of the evidence, or whether it would have reached a different conclusion. The relevant question is whether the First-tier Tribunal had evidence sufficient to support findings which it was entitled rationally and reasonably to make.
4. The staged approach in Georgiou v Customs and Excise Commissioners requires the applicant to identify the challenged finding, show its significance to the conclusion, identify the relevant evidence, and demonstrate why the finding was one which the tribunal was not entitled to make. A general selection of evidence accompanied by an assertion that the conclusion was against the weight of the evidence is insufficient.
5. The First-tier Tribunal was entitled to assess the overall circumstances. Its findings concerning the absence of commercial value, the matching of suppliers’ goods with customers’ requirements, the lack of commercial documentation and insurance, the consistent low profit margin, delayed supplier payments, inadequate due diligence, dealings before due diligence was obtained, and inconsistencies in the Applicant’s evidence provided a rational evidential basis for its conclusions. The absence of a single decisive item of evidence did not invalidate that assessment.
6. The Applicant’s attempts to introduce new evidence, clarify his previous evidence, or advance arguments which could have been made before the First-tier Tribunal did not disclose an error of law. An appeal is not a re-run of the first-instance hearing. Permission to appeal was therefore refused.

1. Upper Tribunal (Tax and Chancery Chamber) — Permission to appeal was refused following reconsideration at an oral hearing.
2. First-tier Tribunal (Tax Chamber) — The Applicant’s appeal against the personal liability notice was dismissed on 17 May 2024. The First-tier Tribunal refused permission to appeal on 19 July 2024.