KNR Flooring Ltd v The Commissioners for HMRC

14. As was re-iterated by Lewison LJ in Volpi v Volpi [2022] EWCA Civ 464, an appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong; and the weight to be given to evidence is pre-eminently a matter for the trial judge.

15. Reading the Decision as a whole, it is clear that the FTT considered the evidence put forward on behalf of KNR as to salary and NICs – the submissions made by the parties were recorded throughout the Decision, including at FTT[43], [44] and [47]. The evidence and submissions in relation to the Business Objects Report are set out, including the evidence from Officer Barrett, eg at FTT[55]. The FTT recorded the evidence from the directors as to their salary, including that it was intended that salaries would increase (at FTT[58]) and that they agreed the salary increase in around February 2020 (at FTT[60]). The FTT referred to the bookkeeping software relied upon by Mr Mitchell at FTT[62], as well as the absence of bank statements at FTT[64], and Mr Mitchell’s submissions in relation to the NICs position at FTT[67] and [68]. The FTT clearly identified the challenges which were made to the RTI data, and in particular the data for month 11, at FTT[78]. The FTT then, at FTT[80] to [85], explained its reasoning, which included that there was “no proof of the actual date” of the informal discussion about increasing salaries. The FTT then concluded at FTT[84] that the evidence was insufficient to prove, on the balance of probabilities, that a salary increase did take place during February 2020 and that the information held by HMRC was incorrect.

16. I am not persuaded that the other FTT decisions to which Mr Mitchell referred assist in showing that it is arguable that the FTT made an error of law when making its decision in relation to the reference salary; the FTT did not treat HMRC’s RTI data as conclusive, it addressed the competing submissions and evidence and then reached its conclusions.

17. I have considered each of the documents in the court bundle to which I was expressly referred during the hearing. I have done so with a considerable amount of trepidation, as (unlike the FTT) I have not heard evidence from Officer Barrett or the directors, and on any view this is a clear illustration of the sport of island hopping which appellate tribunals are warned against.

18. Against that backdrop, I have considered: (1) the Business Objects Report compiled by HMRC – this shows £512 reported for each director on 19 March 2020 (and prior months) and £2,952 for 19 April 2020 and subsequent months. The first payments of £512 were shown as payable the previous year on 30 April 2019, but there were several months during the summer of 2019 where no taxable pay was declared. Mr Mitchell submitted it was dubious that this report was genuine, as it appeared to have been compiled inhouse rather than being based on the actual meta data that was filed online; (2) HMRC’s record of NICs submissions received from KNR for month 11 (received on 19 March 2020) and month 12 (received on 19 April 2020) – the month 11 submission was filed on the basis that no employer NICs were payable, and the month 12 submission declared employer NICs due of £94.94 for each director. Mr Mitchell submitted that these NICs could only have been due in April 2020 if the directors had also received the higher (£2,952) amount of pay in March 2020 (for the month to 5 March 2020) as well as in April 2020; (3) copy of the month 12 PAYE statement from HMRC’s business tax account system – this showed employer’s NICs due of £94.94 for each director; (4) employer’s end of year summary for 2019/20 for each of the directors – this records total pay for each director of £8,976; (5) RTI full payment submission for February 2020 – this shows payments for each director of £2,952 for that month, ie the month ending on 5 March 2020, which Mr Mitchell submitted would have been filed on 19 March 2020. Ms Lawrence submitted that the data on this submission does not reflect what HMRC had recorded as being received from the agent in that RTI submission, and that it is from the agent’s software. Ms Lawrence drew attention to the note on the same document on the following page which states that “The figures in this report are based on the data contained in your payroll file NOW. If you have made changes to your data since submitting the RTI return for this period then the figures in this report may be different from those sent to HMRC originally”; and (6) payslips for each director for February 2020 with a pay date of 5 March 2020 showing pay of £2,952.

19. I also asked Mr Mitchell about the RTI payment record information document for each director for the payment date of 5 March 2020, which shows taxable pay in the period of £512, and Mr Mitchell submitted that these figures were produced by HMRC during the compliance exercise and were not the amounts submitted by Mr Mitchell.

20. Each of these documents were before the FTT (as I was provided with the same court bundle) and, as noted above, the FTT had the benefit of hearing evidence from witnesses from both HMRC and KNR.

21. I recognise that there was some evidence before the FTT which potentially supported KNR’s submissions, in particular the payslips and the RTI full payment submission. However, I did not have evidence as to how these documents were produced, or if amendments had been made. I was not persuaded that the NICs data bore the weight which Mr Mitchell submitted; I was not shown how the amounts of employer’ NICs calculated as due in April 2020 could only have been correct if the higher amount had been paid in March 2020, these returns were filed in April 2020 and I did not hear evidence as to the circumstances in which they were completed and filed. In any event, there was also some evidence before the FTT which supported HMRC’s position. This was in circumstances where, notwithstanding Mr Mitchell’s submission that contemporaneous documents, eg bank data, may be preferred to RTI data, there were no bank statements (whether of KNR or the directors) before the FTT, with this having been explained by Mr Mitchell to the FTT as being because Office Barrett had confirmed during his enquiries that he had received enough information (FTT[64]).

22. Overall, the Decision shows that the FTT considered the conflicting evidence before it (including the evidence in relation to payments of salaries and NICs) in the light of all of the evidence and the parties’ submissions, and decided what weight to give to the evidence that was before it (recognising that there were apparent inconsistencies). The weight to be given to competing evidence should properly be assessed by the FTT as the fact-finding tribunal.

23. I am not persuaded that it is arguable that the decision of the FTT on this question of fact was plainly wrong; it was not a decision that no reasonable judge could have reached.

24. Having considered all five grounds of appeal for which permission was sought by reference to Mr Mitchell’s submissions at the hearing, I am not persuaded that it is arguable that the FTT made an error of law in making its decision on the basis of any of the five grounds of appeal. Decision

25. Permission to appeal is REFUSED on all grounds. Signed: Jeanette Zaman Issued to the parties on: 03.03.26