The role of WhatsApp messages in the Monks tax case
By Chris Campbell, Head of Tax (Tax Practice and Owner Managed Business Taxes)
23 February 2024
Following the scandal surrounding the WhatsApp messages used as evidence in the COVID19 enquiry, we look into a tax case where WhatsApp messages played a role.
The use of WhatsApp messages as evidence has been topical in recent months. Most notably in the COVID19 enquiry, where numerous politicians and special advisers have either been questioned on the deletion of their WhatsApp messages or had them used as evidence. The case of Richard Monks is an example of how WhatsApp messages may also be used as evidence in a tax case.
In this particular case, HMRC opened an enquiry under Section 9A TMA 1970 on 27 January 2022 into Mr Monks’ self-assessment tax return. HMRC sent him a letter requesting a list of information, and obtained proof of postage from the Post Office to confirm that the letter was posted first class.
When no information had been received in response to this request, HMRC then sent a follow-up Schedule 36 Finance Act 2008 notice on 3 March 2022. Mr Monks claimed that he didn't receive the first letter opening the enquiry until 1 February 2022, which was after the final date that HMRC could open an enquiry into the year of assessment.
The first-tier tribunal stated that Mr Monks would have to prove that the letter wasn’t received the day after it was posted. It’s in this respect that his WhatsApp messages proved helpful to some degree.
Mr Monks had a habit of checking his mail every day, taking photos of any financial correspondence and sending them to his tax adviser by WhatsApp straight away. He was able to produce six WhatsApp messages to his adviser with a photo dated 1 February 2022. The tribunal accepted the WhatsApp messages as proof that he hadn’t received the enquiry notice on time.
Learnings from this case
Although the tax outcome wasn’t materially impacted in the Monks case, as the tribunal rejected Mr Monks’ appeal against the Schedule 36 notice, it does show the role that WhatsApp messages could play in proving that something happened when the taxpayer said it did.
As ever, the learning point from the Monks case is the importance of retaining evidence in real time that could be used to support a client’s position during an HMRC enquiry. WhatsApp messages may not have ultimately saved the day for Mr Monks, but it’s possible that they may do so for another taxpayer in different circumstances.
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