19331

CIVIL PENALTY – Dishonest conduct – Single penalty covering seven year period – Whether dishonesty proved in relation to whole period – No – Penalty reduced accordingly

LONDON TRIBUNAL CENTRE

	PREBBLE C & PREBBLE H	Appellants
(trading in partnership)

-	and –

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	STEPHEN OLIVER QC   (Chairman)
						RUTH WATTS DAVIES MHCIMA FCIPD 

Sitting in public in London on 12 December 2003 and on 1 November 2005

The Appellant, C Prebble, in person at hearing on 12 December 2003 but absent at hearing on 1 November 2005

Kieran Beal counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2005

 DECISION

1.	Mr and Mrs Prebble, the Appellants (referred to as “the Prebbles”), traded in partnership in the 1990s as the Monks Kitchen.  This was a restaurant business in Folkestone. They appeal against a decision of the Commissioners, notified in a letter of 14 July 1998, imposing a penalty under VAT Act 1994 (“the Act”) section 60(1) for an evasion through dishonesty of VAT.  The penalty notice, so far as is relevant, reads as follows:

“It has been reported … that you have failed to notify your liability to be registered for VAT at the proper time, and failed to account for the full amount of VAT which was due for the period from 7 June 1991 to 22 January 1998.  The Commissioners consider that in respect of this matter you have rendered yourself liable to a penalty under section 60(1) of the Act for an evasion, through dishonesty, of VAT in the sum of £41,290 for the period from 7 June 1991 to 22 January 1998. 

The penalty, of an amount equal to the tax believed to be evaded, may under section 70(1) be reduced by the Commissioners to an amount as they think proper.  …  On this occasion, the Commissioners, taking into account full disclosure and cooperation you gave when invited to do so, have decided to reduce the penalty to £10,322.50 being one quarter of the amount believed to be evaded.”

2.	The Commissioners, represented by Kieran Beal, submitted a bundle of documents and called as witnesses two officers who had visited the Monks Kitchen and had interviewed Mr Prebble, namely Mr Desmond Lewis and Mrs Frances Brown.  We also had read to us a witness statement produced by the Commissioners made by Mr Gordon Webb, chartered accountant, who was the Prebbles’ accountant.

3.	Mr Prebble presented the Prebbles’ case and gave oral evidence.  He produced letters from Mr Gordon Webb and copies of two pages from his ledgers.

4.	We heard the appeal in December 2003 and issued a draft Decision shortly after that.  Our decision was that the Commissioners had proved dishonesty from 1994 onwards but had not satisfied us as to dishonest conduct before then.  The possibility that we might find dishonesty proved for part but not for the whole of the period covered by the assessment had not occurred to us during the course of the hearing and had not been addressed by either side.  We therefore invited the parties, if they wished, to present further arguments in relation to the following issues:

(i)	whether or not, if dishonesty had not been proved for the whole period, the penalty assessment was wholly invalid and 
(ii)	whether or not any VAT assessment would also be invalid as violating time limits which otherwise would apply but for a finding of dishonesty.

We also gave the Prebbles the opportunity to apply for free legal representation.  They were given 28 days in which to notify the Registrar if they chose to take that course.  The Prebbles did not ask for a further hearing and no notification or application for legal representation was made.  The Commissioners asked for a further hearing and produced a supplemental skeleton argument.

5.	A further hearing was, apparently with some difficulty, fixed for August 2004 but had to be vacated because of other pressures on Mr Prebble.  When the further hearing was finally fixed for 1 November 2005 we were informed that Mr Prebble was in prison serving an 18 month sentence.  Bearing in mind, first, that the two issues set out in paragraph 4 above had been thought up by us, and not by Mr Prebble, on the basis that they might operate in his favour and, second, that they raised purely technical legal points we decided to proceed with the further hearing in the absence of the Prebbles.  Rule 26 of the Tribunals rules allows us to do this, but provides that the absent party (the Prebbles) may apply within 14 days of the release of the decision to have it set aside.

The facts

6.	The Prebbles have traded in partnership at the Monks Kitchen since 1 April 1981.  The partnership was registered for VAT in 1986.  In or about June 1991 they applied for cancellation of their VAT registration on the grounds that their VAT supplies were then below the registration threshold. The application was granted.  There was no evidence from the Commissioners as to their part in the decision to cancel the registration, a matter we shall revert to in paragraph 17. The de-registration application had, according to the witness statement of Mr Gordon Webb (the accountant), been dealt with by the Prebbles themselves who had always done their own VAT returns.  In evidence Mr Prebble said that he had been following his accountant’s instructions.  We have had the chance to look at a clip of letters produced by Mr Prebble covering various tax matters, but these contained no statements that showed that the accountant had either recommended or played a part in the de-registration in 1991.  We find therefore that the accountant was not involved in the de-registration exercise. 

7.	Following the de-registration the partnership continued the business at Monks Kitchen mainly serving lunches to elderly people up to six days a week.

8.	On 23 January 1998 two officers of the Customs and Excise, Mr Lewis and Mrs Brown, visited the Monks Kitchen, spoke to Mr Prebble and examined the business records that were then in his possession.  Among these was a letter from his accountant dated 17 July 1996 in which the accountant stated that the partnership’s “takings figures was again in excess of the VAT threshold”.  The officers found that a high number of till readings did not correspond to the partnership’s daily takings figures.  He admitted at that stage that on occasions during the last couple of years he had been understating sales on a regular basis.  

9.	Later that day Mr Prebble was formally interviewed.  In the course of the interview he admitted that he had understated his sales by an average of £100 per month over the last two years.  He denied that the purpose of doing so was to remain below the VAT threshold and maintained that he was unaware that the sales had exceeded the threshold, notwithstanding the letter from the accountant referred to above.  

10.	Gordon Webb, the Prebbles’ accountant, provided the Commissioners with a summary of their output tax liability for each of the years to 31 March 1997; the letter containing this summary was dated 7 April 1998 and made no admissions as to tax having been dishonestly evaded.  The letter states that “it would appear that the VAT registration should not have been cancelled on 6 June 1991”. On 17 April 1998, Mr Prebble signed a disclosure of VAT in the sum of £41,290 evaded during the period 7 June 1991 to 22 January 1998 inclusive.  The disclosure statement followed earlier communications between Mr Webb and Mrs Brown (of the Canterbury VAT office).  The statement was prefaced with a schedule that reproduced the accountant’s own calculations of output tax liability.  It contained among other things a column for “declared take” (being the amounts of turnover shown in the partnership accounts for each year), and a column for input tax for each year.  “Net tax due” is calculated on the balance.  The statement reads:

“I, CMG Prebble …, certify that this schedule of irregularities of £41,290 is a complete disclosure of VAT evaded by CMG Prebble during the period 7 June 1991 to 22 January 1998.”

Also on 7 April 1998 the Prebbles, through Mr Webb, submitted by a Form VAT 1 a request for registration effective from 7 June 1991.  On some date shortly after that, we were told by Mr Beal for the Commissioners on instructions at the hearing on 1 November 2005, that the Prebbles had made a single formal VAT return for the whole period.

11.	The penalty notice (summarized above) followed on 14 July 1998.  Mr Prebble asked for a review.  The review letter dated 2 October 1998 contains the following passage:

“I am unable to recommend waiver of the penalty.  In reaching my conclusions I have considered:

1.	your wholly inappropriate action to deregister on 6 June 1991.  (The turnover of the business continued to exceed the limits for VAT registration after that date),

2.	your admission during interview of 23 January 1998 that you understated your sales post deregistration, 

3.	a letter to you from your accountant dated 17 July 1996 advising that your turnover had exceeded the VAT registration threshold again, and 

4.	the disclosure of VAT evaded dated 17 April 1998.”

The statutory and legal framework and the issues arising.

12.	The provisions relating to civil evasion penalties are set out in sections 60,70 and 76 of the Act.  Section 60 provides:

“(1)	In any case where –

(a)	for the purpose of evading VAT, a person does any act or omits to take any action, and
(b)	his conduct involves dishonesty (whether or not it is such as to give rise to criminal liability), 

he shall be liable, subject to subsection (6) below, to a penalty equal to the amount of VAT evaded or, as the case may be, sought to be evaded by his conduct.”

13.	Section 60(2) and (3) set out how the amount of VAT evaded is to be determined for the purposes of the section.  Section 60(7) states that the burden of proof in dishonest evasion of VAT shall lie on the Commissioners.

14.	Section 70 permits the Commissioners to reduce the penalties to such amount as they think proper by way of mitigation.  The same power is given to the Tribunal on appeal.  In this connection Mr Prebble argues that his co-operation with the Commissioners warrants a reduction in the penalty to an amount lower than 25% of the tax evaded.  

15.	Section 76(3)(b) provides that in the case of a penalty under section 60 the “relevant period” for which it is to be assessed is “the prescribed accounting period for which the VAT evaded was due”.  This period, we infer from the penalty notice of 14 July 1998, has been taken as the period from 7 June 1991 to 22 January 1998.  We will return to this point in paragraphs 37 to 41 below.

16.	The elements of dishonesty relied upon by the Commissioners cover the underdeclarations of takings in the business coupled with two specific items identified in the Commissioners’ Statement of Case. The first is that the Prebbles “incorrectly declared, pursuant to section (sic) 13 of Schedule 1 to the Act that they were no longer liable to be registered.”  The second is that they “then subsequently failed to notify the Commissioners of their liability to be so registered in accordance with section (sic) 11 of Schedule 1 …”

17.	The penalty, as appears from the notice of 11 July 1998, is imposed “for the evasion, through dishonesty, of VAT in the sum of £41,290, for the period from 7 June 1991 to 22 January 1998”.  In our draft Decision of December 2003 we observed that there appeared to have been a single tax assessment for a single amount for the whole period.  The consequence, if that were right, was (arguably) that the Commissioners would have to prove conduct involving dishonest evasion of the whole amount of £41,290; failing that (again arguably) the entire penalty assessment would fail.

18.	At the hearing on 1 November 2005 we were told that there had been no tax assessments raised by the Commissioners under section 73.  No assessment had  been necessary because the relevant VAT for each yearly period had been declared to be due by the Prebbles by a voluntary disclosure contained in Mr Webb’s letter of 7 April 1998 backed up by the “Schedule of Arrears and Irregularities” accompanying that letter.  We accept this explanation. 

19.	The Commissioners have to prove conduct involving dishonesty. To do this they have to show that the partnership of the Appellants dishonestly (i) did an act, namely applied for deregistration in 1991, and (ii) omitted to take any action, namely failed to apply for registration thereafter, in both cases for the purpose of evading VAT. Moreover the Commissioners have to satisfy us with evidence whose weight matches the seriousness of the allegations of dishonesty.  

20.	Relevant to the Commissioners’ allegation that the Prebbles dishonestly deregistered are the words of paragraph 13 of Schedule 1 to the Act.  Paragraph 13(1) provides - “Where a registered person satisfies the Commissioners that he is not liable to be registered …, they shall, if he so requests, cancel his registration with effect from the date on which such request is made”.  Paragraph 13(4) provides that the Commissioners “shall not under sub-paragraph (1) above cancel a person’s registration with effect from any time unless they are satisfied that it is not a time when that person will be subject to a requirement to be registered under the Act”.  Those words indicate that a trader applying to have his registration cancelled must provide information that satisfies the Commissioners to that effect.  (We mention this point because there was no evidence from the Commissioners as to either what information they were given when the application to deregister was made in 1991 or how they satisfied themselves that the partnership was not liable to be registered.)

21.	Relevant to the Commissioners’ allegation that the Prebbles dishonestly omitted to apply for registration thereafter is, for example, Schedule 1 paragraph 1 which states that “a person who makes taxable supplies but is not registered … becomes liable to be registered … at the end of any month if the value of his taxable supplies in the period of one year then ending has exceeded” a specified amount.  This specified amount was £32,000 in 1991/92 rising by stages to £49,000 in 1998.  

22.	Mr Prebble produced a statement in which he accepted with hindsight that he should have been registered for VAT.  He had, he said, deregistered because he believed he had been below the threshold for registration purposes.  He also accepted that he had been negligent in fulfilling his responsibilities.  His inability to cope had resulted from his seriously bad sight.  His failure to comply had been the result of accident rather than dishonesty.

23.	It has not been in issue that the Prebbles should have accounted for VAT since June 1991.  A letter of 11 July 1991 from Mr Webb states that:

“Some thing drastic seems to have gone wrong with regard to recording Takings for the year ended 30 April 1989. Bankings into both the business and your private accounts together with recorded cash payments exceeded recorded income by some £9,000.  It has been necessary to incorporate a VAT provision of £1,189 in the accounts.  I seem to recall that you were having enormous problems with the till which was in use during the 1989 accounting year and I assume this accounts for the discrepancy in recorded turnover.”

That passage is evidence that there had been an underclaration of takings under the Prebbles’ previous VAT registration. Mr Prebble volunteered this when he opened his evidence.  The Commissioners point to those factors as evidence that the Prebbles were aware of the VAT thresholds in 1991 and that their decision to deregister (for which Mr Prebble had untruthfully tried to assign responsibility to their accountant) had been taken with full consciousness of the turnover figures at the time.

The application of the test of dishonesty

24.	In the light of  R v Ghosh[1982] 1 QB 1053, CA, we have to decide –

(1)	whether according to the standards of reasonable and honest people what was done or omitted to have been done, i.e. the act of deregistration in 1991 and the continuing failure thereafter to apply for registration, were dishonest; and if so

(2)	whether the Prebbles themselves must have realized that what they were doing was dishonest by those standards.

In this connection it is enough that one of the two partners was dishonest so long as he was acting in his capacity as a partner.  

25.	The first limb of the Ghosh test of dishonesty is, we think, satisfied here. This assumes that the Commissioners have proved both the conduct and the intent relied upon by them. A person who deliberately deregisters to avoid having to charge and account for VAT in a trade, whose turnover he expects to continue to exceed the registration threshold, acts dishonestly by the standards of reasonable and honest people.  A person who continues to trade knowing that his turnover exceeds the registration threshold may be regarded as acting dishonestly by those standards.  The issue on the second limb of the Ghosh test is whether the Commissioners have satisfied us on the evidence adduced that Mr Prebble must have realized that what he was doing was dishonest by those standards.

Conclusions

26.	We start by recording that Mr Prebble accepted that the true takings since June 1991 were such that £41,290 of tax should have been paid.  The schedule referred to in paragraph 10, produced in a letter of 7 April 1998 from Mr Prebble’s accountant (Mr G Webb), showed that:

•	from 7 June 1991 to 30 April 1992 turnover exceeded the £35,000 threshold by some £4,000,
•	in the 12 months to 30 April 1993 turnover exceeded the £36,600 threshold by £3,488,
•	in the 12 months to 30 April 1994 turnover exceeded the £37,600 threshold by £10,245,
•	in the 12 months to 30 April 1995 turnover exceeded the £46,000 threshold by £3,935,
•	in the 12 months to 30 April 1996 turnover exceeded the £47,000 threshold by £3,994,
•	in the 11 months to 30 March 1997 turnover of £44,446 fell short of £46,800 (being 11/12ths of  the annual threshold of £48,000) by £2,354 and
•	in the 9 months to 22 January 1998, turnover of £48,753 exceeded £36,754 (being 9/10ths of  £49,000) by about £12,000.

The underdeclaration of £41,290 was endorsed by the Prebbles by their making the single VAT return referred to in paragraph 8 above.

27.	It is clear from the evidence and from Mr Prebble’s responses to questions put to him in the course of the interview that he understood the system of registration and deregistration and that he understood the threshold requirements.  We do not however accept that the disclosure statement (set out in paragraph 10 above) is to be taken as equivalent to an informed “plea of guilty” to evasion of the tax of £41,290 through conduct involving dishonesty.

28.	Before addressing the rest of the evidence we mention that we are satisfied that the interview was carried out fairly and without any element of coercion or repression.  Mr Prebble was given a copy of Notice 730.  He was given the opportunity to read it and is recorded as having done so for seven minutes.  He confirmed in the notice of interview that he understood Notice 730 and that he was willing to answer to questions.  In making these points we recognized that Mr Prebble has a severe visual impairment.  We see no reason for excluding either the whole interview or any part of it.  

29.	We turn now to examine the evidence in chronological order so far as this is possible.  The Statement of Case states that the Prebbles applied for and were granted cancellation of their VAT registration “on the grounds that their taxable supplies were below the VAT registration threshold then in force”.  Bearing in mind the statutory requirement (in Schedule 1 paragraph 13(1)) that the Commissioners be satisfied that registration is in order, we assume that the Commissioners were so satisfied.  We have already noted in paragraph 20 above that the Commissioners offered no evidence to show the circumstances of the deregistration.  Mr Prebble put in evidence a letter from his accountant dated 8 July 1992 dealing with the finalization of the partnership accounts for the twelve months to 30 April 1990.  The letter noted “a considerable drop” in takings to £34,968.  In evidence Mr Prebble gave as the reason for deregistration in June 1991 – “Because our turnover was falling”.  The evidence so far is not enough to substantiate the Commissioners’ case that Mr Prebble knew that he was acting dishonestly when he applied for deregistration.  The only specific evidence that the Commissioners have provided in support of their case is Mr Prebble’s assertion (which we have not accepted for reasons given earlier) that his accountant dealt with the deregistration.  But even if the act of deregistration had been initiated by Mr Prebble without his accountant’s assistance, we do not consider that that factor, even taken in association with the subsequent omission to re-register, is enough to substantiate a finding of dishonesty in relation to that act.  

30.	Our conclusion, based on the very limited evidence as to the circumstances of the deregistration, therefore, is that the Commissioners have not satisfied us that the application to deregister was an act involving dishonest conduct on Mr Prebble’s part.    We recognize in this connection that subsequent conduct, if proved, might raise an irresistible inference that the earlier act of deregistration formed part of a composite course of dishonest conduct.  Here, for reasons we will come to, we are not satisfied that dishonest conduct is proved until early 1994. In reaching this conclusion we have taken account of the points set out in paragraph 21 above upon which reliance was placed by the Commissioners in support of their case that dishonesty had been present since June 1991. We cannot, as a result and despite those points, make a finding of dishonesty in relation to the act of deregistration in 1991.

31.	The period from 7 June 1991 to 30 April 1992 showed turnover running at around £4000 over the registration threshold.  A letter from the accountant dated 31 August 1993 shows that he had by then prepared the Inland Revenue tax return for the period to 5 April 1992.  Nothing in the accountant’s letter suggests that the partners should be registered for VAT or at least should be making a provision for VAT liabilities in the partnership accounts.

32.	The Commissioners pointed to the procedure adopted by the partnership, which appears to have been the same throughout the period of trading, of taking a daily Z reading from the till and reconciling this with the cash that the business had taken in the course of that day; Mr Prebble, as the active partner, would then write down the daily gross takings figure for the day in his records, but he would not write in the Z reading figure.  Mr Prebble’s explanation for this procedure was that, because so many people were operating the till, he could not be satisfied that the Z readings would be accurate.  Mr Prebble said that he set up as a “network distribution agent” for water filters in the early 1990s and that throughout the period covered by the penalty assessments he had been working in the evenings as an employee at a restaurant; these factors at least indicate that Mr and Mrs Prebble had not been living on earnings from the Monks Kitchen alone.  

33.	Looking at the position during the 11 months to 30 April 1992 we are not satisfied on the evidence produced that Mr Prebble was dishonestly omitting to register for the purposes of evading VAT.  He may have been negligent; Mr Prebble’s explanation of the accounting procedures shows that he was certainly casual to the point of reckless.  There are, we recognize, situations where recklessness may be evidence of dishonesty especially where the person in question knows the truth and is of normal intelligence.  Here, however, the evidence does not satisfy us that Mr Prebble knew the full extent of his turnover during that period.  The features of that period do not satisfy us that the Prebbles were guilty of dishonest conduct in omitting to apply for registration.

34.	The partnership accounts for the 12 months to 30 April 1993 appear to have been almost completed by the accountant by 5 October 1995 and used as the basis for the partnership’s income tax returns for the relevant income tax period.  We refer to a letter from the accountant dated 5 August 1994.  There is nothing in that letter or in any earlier letters to suggest that the Prebbles should have been registered for VAT.    (The output VAT for which the partnership should have been accounting to the Commissioners would, had the matter been correctly recorded in the accounts, have been excluded from charge to income tax.)  At the same time we note that turnover to 30 April 1993 exceeded the registration threshold by £3,488 and that, from his earlier experience of trading when registered for VAT, Mr Prebble was aware of the VAT registration system. But even taking those factors into account we are not satisfied of dishonest conduct on the part of the Appellant partnership.

35.	In the next 12 months to 30 April 1994 turnover overran the registration threshold by over £10,000.  It should have been obvious to Mr Prebble that he ought by now to have registered.  The accountant addressed the matter in his letter of 17 July 1996 observing that takings were up from £40,088 to £47,855. The Commissioners’ case for alleging dishonesty by the Prebbles’ omission to register has by now become much stronger. The extent of Mr Prebble’s knowledge is still a matter of inference; by now however the inference is sufficiently strong to warrant a finding of dishonest conduct on the part of the Appellants by early 1994. 

36.	In the accountant’s letter of 17 July 1996 it is observed that the partners were “again” in excess of the registration threshold.  The Commissioners placed great reliance on the use of that word. We think that Mr Prebble’s ignoring of this warning (in July 1996) shows that by then Mr Prebble knew he should have registered.  This is reinforced by statements made by him in the course of the interview of 23 January 1998.  There Mr Prebble admitted that he had been understating sales for the “last couple of years … to buy little luxuries that we do not have”.  For those reasons we are satisfied that Mr Prebble continued knowingly to omit to register for VAT from early 1994 onwards and we are persuaded that his conduct was dishonest from then on.

37.	In our draft Decision of December 2003 we had expressed concern that the whole or part of the VAT assessment might have been bad on the basis that it violated the time limits that required findings of dishonesty to enable out of time assessments to be made.  We now know that no assessment or assessments to tax were made.  This was because the relevant VAT had been declared to be due by the voluntary disclosure contained in Mr Webb’s letter of 7 April 1998 and subsequently returned in the VAT return for the whole period.  That meets our concerns both on that point, and on the implications that a bad tax assessment could have on the validity of the penalty assessment.

38.	We turn now to the question whether, because the Commissioners have not satisfied us that the Prebbles dishonestly evaded tax over the whole period from June 1991 until January 1998, the entire penalty assessment fails.  This was the main cause for our asking for further representations.  The point had been taken by us and not by Mr Prebble. Following argument on the point by Mr Beal for the Commissioners we have concluded that the penalty notice was good.

39.	The notice of assessment of the penalty notifies the Prebbles of their liability to a penalty under section 60(1) in the sum of £41,290 for the period from 7 June 1991 to 22 January 1998.  That period is the period adopted for the disclosure of 17 April 1998 and for the first VAT return following the reregistration.  As such it is the prescribed accounting period for purposes of both sections 25 (tax) and 76 (penalties).

40.	The penalty which was in fact assessed against the Prebbles covered sums which were due to the Commissioners and had been evaded during that prescribed accounting period.  No sums due in respect of any other prescribed accounting period were included.  The period of the penalty assessment as notified ended at 22 January 1998 because that was the last date on which the schedule of underdeclarations indicated that output tax had been underdeclared.

41.	The penalty notice was therefore raised for an amount due in respect of the only prescribed accounting period which applied.  The amount of the penalty was based on the disclosed figures provided by the Prebbles in a “voluntary” disclosure of 17 April 1998.  Those figures were broken down into annual amounts in that document and the Prebbles can have had no doubt as to the underlying tax which was said to be due.  It had been prepared by their accountant with their consent and signed by Mr Prebble.

42.	The effect of our decision is that the Commissioners have not established to our satisfaction that output tax which was undeclared in the years 1991 to 1993 was dishonestly evaded.  It does not follow that the penalty as a whole must fall.  The effect of our decision is to restrict the recoverable penalty to that portion which has been charged in respect of the period from early 1994 to January 1998.  This part of the penalty has been validly charged and cannot be struck down.  Section 83(q) clearly states that the present appeal is brought against “the amount of any penalty … specified in an assessment under section 76.”  It is open to us, under the proviso to section 84(6), to vary the amount of penalty assessed on the Appellants precisely because “it is necessary to reduce it to the amount which is appropriate under section [60].”  It is therefore open to us to direct that the appeal be allowed in respect of that part of the penalty assessment which relates to undeclared tax up until April 1994.  This is the position notwithstanding the fact that there is no underlying tax assessment but rather a voluntary disclosure and return of underdeclared takings.

43.	The effect of our decision is that the penalty assessment should be reduced to the extent that the penalty relates to the tax due for the period 7.6.91 to 30.4.92 (£4,658.81), for the period to 30.4.93 (£5,097.19) and for the eight months to the end of 1993 (two thirds of £6,231.61, i.e. £4,154.40), making £13,910.40 in total.  The adjusted penalty will therefore be 25% of £41,290 (£10322.50) minus 25% of £13,910.40 (£3,477.60), i.e. £6,844.90.

44.	The Commissioners have asked for their costs.  We see no reason why the costs should not follow the outcome of the appeal which has been for the penalty assessment to be substantially upheld.  We therefore award the Commissioners their costs of an amount to be agreed and if not agreed to be referred back to this tribunal.

45.	Because the hearing on 1 November 2005 was conducted in the absence of either Mr or Mrs Prebble, they have the right, as noted earlier, under rule 26 of the Tribunals Rules to make an application to have our decision set aside on such terms as the Tribunal thinks fit. If they wish to apply they must do so within 14 days of the release of this decision. 

STEPHEN OLIVER QC
CHAIRMAN

RELEASED: 9 NOVEMBER 2005

LON/98/1327