1874099 907 BAHRAM TELEFONI Colin Bishopp John Davison North Shields 12 and 13 July The Appellant did not appear and was not represented Robert Toon, of counsel, instructed by the Solicitor's Office of HM Customs and Excise, for the Respondents 
	APPEAL  — hearing conducted partly in appellant’s absence and appeal dismissed — decision set aside and re-hearing directed — appellant failing to attend or be represented at re-hearing — absence inadequately explained — appeal dismissed without hearing evidence

MANCHESTER TRIBUNAL CENTRE

 
 	
	BAHRAM TELEFONI	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 Colin Bishopp (Chairman)
						 John Davison (Member)	

Sitting in public in North Shields on 12 July 2004

The Appellant did not appear and was not represented

Robert Toone, of counsel, instructed by the Solicitor’s Office of HM Customs and Excise, for the Respondents

	© CROWN COPYRIGHT 2004

DECISION

1.	This is an appeal by Mr Bahram Telefoni against an assessment made as long ago as 21 April 1999, and against an associated misdeclaration penalty.  The appeal has already been heard once and dismissed, but the decision was set aside and it came before us for re-hearing.
2.	Mr Telefoni did not attend the hearing, and he was not represented.  It was apparent from what we were told by Robert Toone, counsel for the Commissioners, and from the tribunal’s file, that the first hearing of Mr Telefoni’s appeal had been adjourned, part heard, to enable him to call some witnesses.  Mr Telefoni did not appear when the hearing was resumed, and the tribunal – differently constituted from this tribunal – proceeded to continue the hearing in his absence, and dismissed it.  Mr Telefoni then applied, pursuant to rule 26(3) of the Value Added Tax Tribunals Rules (SI 1986/590), for a direction setting aside the decision, on the grounds that a witness whom he had intended to call had been bereaved very shortly before the adjourned hearing and had been unwilling to attend.  Although there was no apparent reason why Mr Telefoni had not attended the continued hearing himself in order to seek an adjournment, the tribunal which heard his application granted it and the further hearing before us was the outcome.
3.	In about April 2004 Mr Telefoni secured professional representation by IVC, the VAT consultants.  The hearing before us was fixed.  IVC then indicated that they proposed to instruct Mr Richard Barlow of counsel to represent the appellant.  About two weeks before the day fixed for the hearing IVC asked that it be postponed because (as we ourselves know to be the case) Mr Barlow was not available to appear.  That application was refused by the present chairman on the ground that the hearing had been fixed for a long time and if Mr Barlow was not available there was no evident reason (and none was suggested) why someone else could not be instructed.  The request was repeated and refused again, for the same reason.
4.	On the morning of the hearing IVC telephoned the tribunal office to inform the staff that, instead of instructing someone else to represent Mr Telefoni, IVC had offered to do so themselves, but Mr Telefoni had decided that he preferred to represent himself.  That information had not previously been communicated to the tribunal.  However, IVC said, Mr Telefoni had been taken ill the previous day and his wife had requested and obtained medical treatment for him.  We were, it appeared, invited to infer that he was not fit to attend.  His wife (it was said) had not thought to ask for a medical certificate confirming his inability to attend, though it was evident that he or she had had the presence of mind to tell the witnesses he wished to call not to attend.  Quite why this information reached us through IVC, who were by their own account without instructions, rather than directly from Mr or Mrs Telefoni, was not at all clear.  So far as we are aware, neither Mr nor Mrs Telefoni made any attempt themselves to contact the tribunal.
5.	We sat to hear the appeal an hour after the appointed time.  Mrs Telefoni did not attend, either to address us on her husband’s behalf or to provide a medical certificate.  Mr Telefoni’s home, we ascertained, is a very short distance from the hearing centre.  Mr Toone asked us to dismiss the appeal; this was the second occasion on which his witnesses had attended to give evidence and it was not reasonable that the hearing should be postponed with the result that they would have to attend for a third time.  We agreed with him.  We considered hearing the respondents’ evidence in Mr Telefoni’s absence but concluded that there was no good reason for us to do so.  The earlier decision had been set aside in order to enable Mr Telefoni to call witnesses and put his side of the case.  He had not taken advantage of that opportunity, and we were in exactly the same position as the first tribunal.  Although we recognise its decision has been set aside, we could see no purpose to our repeating what the first tribunal had done.  The burden of proof is on Mr Telefoni and he has failed to discharge it; in our view the inescapable consequence is that the appeal must be dismissed.
6.	Mr Toone sought a direction in the Commissioners’ favour in respect of their costs.  Since Mr Telefoni’s absence was not, as we see it, properly explained we considered that a proper application.  We direct that Mr Telefoni pay the Commissioners’ costs, which we assess at £1,000.
7.	Mr Telefoni will, we imagine, wish to consider making an application to set aside this decision.  We cannot, of course, anticipate what view another tribunal hearing any such application might take but it may be helpful if we indicate that it is likely to require clear and unambiguous evidence from a registered medical practitioner that Mr Telefoni was suddenly taken ill on the day prior to the hearing, and that the nature of his condition was such that he could not reasonably have been expected to attend the hearing.

COLIN BISHOPP
CHAIRMAN
Release Date: 26 August 2004
MAN/99/907