EM3259 - Discovery: issuing discovery assessments: onus of proof for ETL assessments

If HMRC have made an extended time limit assessment (ETL) it is because there has been a loss of tax as a result of behaviour that is either

• careless, or
• deliberate

If the tribunal is considering an appeal against an ETL assessment, HMRC will need to demonstrate that the alleged behaviour is sufficiently serious to support the assessment.

For example, even where there may be some evidence of deliberate behaviour HMRC may not need to allege deliberate behaviour where careless behaviour is sufficient to make the assessment. In such a case, HMRC will need to allege that the behaviour is at least careless, going back 6 years to issue ETL assessments.

At a later stage in the enquiry HMRC may need to demonstrate deliberate behaviour for penalty purposes, but if the behaviour is at least careless then it is sufficient for the purposes of issuing ETL assessments to go back 6 years.

Once HMRC have done this satisfactorily, the onus of proof will normally revert to the taxpayer if they are appealing against the amount of the assessment.