Witness summonses at the tax tribunal

Under rule 16 of the Tax Chamber Rules, the First tier Tribunal can summon any person to attend a hearing as a witness, or order any person to answer questions or produce documents relating to an issue in the appeal. A party asks by written application giving reasons, and the summons must give the witness at least 14 days’ notice and, for someone who is not a party, say who pays their expenses.

What can the tribunal make someone do?

Rule 16(1) of the Tribunal Procedure (First tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273) gives the tribunal two separate powers, which it can use on a party’s application or on its own initiative:

• A witness summons (called a citation in Scotland) requiring a person to attend a hearing as a witness at a stated time and place.
• An order requiring a person to answer questions or produce documents in their possession or control which relate to any issue in the proceedings.

The second power is wider than it looks. It is not limited to the other party, so it can reach a bank, a former adviser, a supplier or a company that holds records you need. The tribunal’s general case management power in rule 5(3)(d) also lets it require a party or another person to provide documents or information. The Upper Tribunal has a matching power in rule 16 of its own rules (SI 2008/2698), so the same approach applies if the case goes on appeal.

This page looks at compelling evidence. For how ordinary evidence, witness statements and bundles are prepared, see evidence and witness statements at the tax tribunal.

When would you need a summons rather than just asking?

Most witnesses come voluntarily. You need a summons when a person whose evidence you rely on will not attend, or cannot attend without a formal requirement, for example an employee who needs a reason to give their employer for time off, or a former business partner who has fallen out with you.

HMRC officers are a common case. HMRC’s Appeals, Reviews and Tribunals Guidance at ARTG8630 says the tribunal may summon any person, including decision makers and review officers, but that in practice HMRC usually agrees to produce its officers as witnesses without a summons. It also says that where the tribunal has not directed who should attend and the case is not a Basic case, the tribunal is likely to assume the decision maker will attend. So the first step is usually to ask HMRC in writing whether the officer will be called, and only apply for a summons if HMRC refuses.

How do you apply?

A summons or order is a direction, so rule 6 applies. You can apply by sending a written application to the tribunal or orally during a hearing, and the application must include your reasons. A useful written application covers:

• the person’s name and address, and their connection with the case;
• what evidence or documents you expect them to give, described as specifically as you can;
• which issue in the appeal that evidence goes to, since rule 16(1)(b) only covers documents relating to an issue in the proceedings;
• why you cannot get the evidence another way, such as a witness statement or a voluntary request;
• how the person’s necessary expenses of attending will be met.

The tribunal’s guidance for appellants (form T242) lists a practice direction on witness summonses and orders to produce documents among the practice directions the tribunal has issued, so check that before you apply. Copy your application to HMRC. Rule 6(4) requires the tribunal to send notice of any direction it gives to every party and to any other person affected, unless there is good reason not to.

When will the tribunal grant it?

The rules do not set a pass mark, but they tell the tribunal what to weigh. Rule 2 requires every power to be exercised to deal with cases fairly and justly, which includes acting proportionately to the importance and complexity of the case and the resources of the parties, ensuring the parties can participate fully, and avoiding delay. In practice an application is stronger when:

• the evidence is clearly relevant to a disputed issue, rather than background;
• the request is targeted, for example named documents or a defined period, not everything the person holds;
• it is made early enough to fit the timetable without moving the hearing.

Rule 15(1)(d) also lets the tribunal limit the number of witnesses a party may call, and rule 15(2)(b) lets it exclude evidence provided late or in breach of a direction, so a late application for a summons can fail simply because of timing.

There is an absolute limit in rule 16(3). Nobody can be compelled to give evidence or produce a document that they could not be compelled to give or produce at a trial in a court of law in the part of the United Kingdom where the appeal is to be decided. Legally privileged material is the obvious example.

What must a summons say, and can the person object?

Rule 16(2) requires a witness summons to give the person at least 14 days’ notice of the hearing, or a shorter period if the tribunal directs, and, where the person is not a party, to make provision for their necessary expenses of attendance and state who is to pay them. GOV.UK’s guide to hearings says the tribunal will not pay travel or accommodation costs for people attending, so expect the party asking for the summons to be directed to meet the witness’s expenses.

Rule 16(6) requires every summons or order to tell the person that they may apply to vary or set it aside, and to state the consequences of not complying.

The person can object. Under rule 16(4) a person who receives a summons, citation or order can apply to the tribunal for it to be varied or set aside if they did not have a chance to object before it was made. Rule 16(5) requires them to do so as soon as reasonably practicable after receiving it. Typical grounds are that the documents are privileged, that the request is too wide, or that the date is impossible. The tribunal can narrow the order rather than cancel it.

What happens if a witness ignores it?

The First tier Tribunal cannot itself punish non compliance. Rule 7(3) lets it refer the failure to the Upper Tribunal and ask it to use its powers under section 25 of the Tribunals, Courts and Enforcement Act 2007. That section gives the Upper Tribunal the same powers as the High Court (or, in Scotland, the Court of Session) over the attendance and examination of witnesses and the production and inspection of documents. The referral can cover failing to attend, failing to give evidence, refusing to take an oath, and failing to produce or allow inspection of a document.

If an HMRC witness fails to attend, rule 7(2) also lets the tribunal take any action it considers just against a party that breaches a direction, including restricting that party’s participation in the proceedings.

What about witnesses abroad and sensitive HMRC material?

T242 says a witness cannot join a video hearing from outside the UK unless the government of that country has given permission for people there to give evidence by video link, and GOV.UK’s hearing guide asks you to tell the tribunal as soon as possible which country the witness is in. Raise this at the directions stage, not the week before the hearing.

If you ask for HMRC documents that include intelligence, ARTG8640 shows HMRC may reply that it is not in the public interest to answer, or may apply for an order under rule 14 that the material should not be disclosed. The tribunal then decides. An application targeted at the documents HMRC actually relied on for its decision is more likely to succeed than a general request for HMRC’s file.

How might this work in practice?

Illustration only. A company appeals a corporation tax amendment that treats payments to a subcontractor as disguised dividends. The subcontractor, now in dispute with the company, will not give a statement. The company applies in writing two months before the hearing for a summons for the subcontractor and an order for its invoices and bank statements for the two years under appeal, explaining that they show the work was actually done. The tribunal grants the summons, directs the company to pay the subcontractor’s travel costs, and narrows the order to the invoices and the statements showing the receipts. The subcontractor applies under rule 16(4) to set aside the order for bank statements, and the tribunal limits it to the relevant pages.

What are the common mistakes?

• Applying so late that the 14 day notice period cannot be met without moving the hearing.
• Asking for every document a person holds instead of the documents that bear on a disputed issue.
• Applying for a summons for an HMRC officer without first asking HMRC whether the officer will attend.
• Not offering to meet a non party witness’s expenses.
• Relying on a hostile witness without thinking about what they will actually say once summoned.

For what to expect on the day, see what happens at a tax tribunal hearing, and if you are running the appeal without an adviser, representing yourself at the tax tribunal. For the earlier stages of a dispute, see HMRC statutory review and the tax tribunal.

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Related Accountapedia entries

• Evidence and witness statements at the tax tribunal
• Costs in tax tribunal appeals
• HMRC Statutory Review and the Tax Tribunal
• Who can represent you at the tax tribunal
• Tax tribunal appeal categories explained

Sources

• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2008/2698
• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: SI 2009/273
• legislation.gov.uk: Act 2007 c. 15, section 25
• GOV.UK: Manual page ARTG8630
• GOV.UK: Manual page ARTG8640

Reviewed by Christine Anderson, Broker, Solar Protect. Last reviewed 24 October 2026. Part of Accountapedia, the Solar Protect guide to UK tax and accounting. This page is general information, not personalised advice.