The issue was whether an assessment issued by the commissioners in the sum of £6,608,250 was made in time under VATA 1994, s. 73 and, specifically, whether the appellant's skeleton arguments for a previous hearing constituted ‘evidence of facts’ for the purposes of that section.

The supplies in issue were the forward purchases of gas and power which were covered by long and complicated documents. The documents contained complex provisions dealing with events of default and these were triggered when the appellant went into administration. The assessment in question was issued by the commissioners in March 2005. There was agreement between the parties that all the relevant documents and information, except the appellant's skeleton arguments for the tribunal hearing in 2005, were in the commissioners' possession more than 12 months before the assessment was made. The tribunal found that no tax point occurred in respect of any sum other than £655,858 in period 9/02 and, therefore, the assessment could not be sustained. In the commissioners' appeal to the High Court, the tribunal's decision to allow the appeal was upheld, although on a different legal analysis.

The appellant submitted that the assessment was made out of time by virtue of s. 76(3) of the 1994 Act, that is it was more than one year after evidence of facts, sufficient to justify the making of the assessment, came to the knowledge of the commissioners. It was common ground that, apart from the skeleton argument, the commissioners had received all relevant information and documents more than a year before the making of the assessment. In the opinion of the appellant, the skeleton argument contained legal arguments and submissions and could not be ‘evidence of facts’.

The commissioners submitted that the skeleton argument was, indeed, evidence of facts. It contained the opinion of the appellant relating to the date that the supplies in question had been made. This opinion only came to the commissioners' attention when they received the document. They submitted that the appellant's opinion was not a matter of law, but a matter of fact relating to the question of when the relevant supplies were made. It followed, in the commissioners' view, that, since it was issued within 12 months of the skeleton argument coming to their attention, the assessment was made in time and the appeal should be dismissed.

The tribunal allowed the company's appeal.

1. The skeleton argument was directed at matters of law on which the appellant relied. It was not a statement of facts.
2. The words ‘evidence of facts’ should be given their natural meaning as established by the Court of Appeal in C & E Commrs v DFS Furniture Co plc [2004] BVC 666.
3. Whilst the commissioners became aware from the skeleton argument of the appellant's legal argument as to the assessment being for the wrong period,
4. that was not ‘evidence of facts’ to justify the making of an assessment. It was ‘of a different, non-factual character’ as that expression was used by the court in DFS Furniture.
5. Since the skeleton argument was not ‘evidence of facts’, the assessment was out of time.

No. 20,436