DMBM523230 - Debt and return pursuit: PAYE: Regulation 72 (5) Income Tax (Pay As You Earn) Regulations 2003: appeals: burden of proof and evidence

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Employer appeal

The burden of proof is always with the employer to prove that he took reasonable care and the failure to deduct the tax was an error made in good faith. But once the employer has presented evidence that he did take reasonable care, and that failure to deduct the right amounts was an error made in good faith, HMRC must convince the tribunal that the reasons given do not satisfy Condition A.

Employee appeal

The burden of proof is with the employee to show that the employer did not act in good faith or take reasonable care, or that the amount is wrong. However, where an employee is unrepresented the Tribunal may request that HMRC provides the background and demonstrates how the Condition was met.

If the grounds for appeal are either that the figures are wrong or that the relevant payment was not a notional payment, then the burden of proof lies with the employee.

Evidence

It is the evidence that proves the facts. There are two types of evidence:

• circumstantial - this is where an inference can be drawn. If you think that there are inferences that should be drawn from the evidence then highlight this in your brief.
• direct - this requires no inference, for example -”I saw him do it.”

You will need to detail the evidence that supports your case to convince the Tribunal that the decision was correct.