Upper Tribunal upholds First Tier Tribunal’s decision in win for the NCA

The Upper Tribunal has rejected the Appellants’ appeals, upholding the First-tier Tribunal’s decision in relation to assessments dating back to the tax year 1996/97 issued by the NCA after adopting revenue powers under POCA 2002.

The Appellants had sought to challenge the decision on the basis that the NCA (i) needed to identify a specific source, and (ii) had identified a source of the funds being a trade of money laundering, but that it had failed to meet the burden of proof.

Rejecting the Appellants’ position, the Upper Tribunal considered in detail the discovery assessment regime, in particular the burden ss.29 and 36 place on, here, the NCA, and whether the NCA/HMRC are required to show an “actual loss of tax”. The Upper Tribunal held:

“[51] …there was no error of law on the part of the FTT as regards what s36 TMA required the NCA to show in respect of a loss of tax. The NCA did not have to establish an actual loss of tax, but did have to show a prima facie case that there was a loss of tax that the taxpayer did not adequately answer. It did not have to show a loss of tax from a specified source. To require that would plainly be inconsistent with the legal principles and the rationale for them explained by the Upper Tribunal in Mullens.”

Sarah Black acted for the National Crime Agency. The Upper Tribunal decision can be found here Butt and another v NCA [2025] UKUT 145 (TC)