Judicial Review of APN has been requested ...

[webberg]

The report is accurate as far as it goes.

The Head of Tax at Pinsent Masons put together a group of investors who were members of Ingenious Film Partners LLP's (there are two of them).

They paid around £1k each and in return Pinsent applied for a JR. There is a hearing date penciled in for about 4/5 months time.

For those people in the group, collection of the APN has been suspended until a hearing takes place.

For all other members of the partnerships both Pinsent and HMRC say that payment remains due.

Bear in mind that the JR at this stage is creating a DELAY, not a withdrawal.

If the JR is upheld, HMRC will either challenge or amend the law and go again.

If the JR is rejected, the demand becomes active and I'm not clear that the penalty for non payment would be waived (I'd hope it would but it's not clear).

Pinsent are a good firm and have been active in the film scheme and related worlds for a long time. For all I know they have expertise in the type of contractor schemes we see but as this is JR related, it is perhaps less important.

I am aware of at least three other firms preparing JR challenges in the film world.

[jbryce]

The report is accurate as far as it goes.

The Head of Tax at Pinsent Masons put together a group of investors who were members of Ingenious Film Partners LLP's (there are two of them).

They paid around £1k each and in return Pinsent applied for a JR. There is a hearing date penciled in for about 4/5 months time.

For those people in the group, collection of the APN has been suspended until a hearing takes place.

For all other members of the partnerships both Pinsent and HMRC say that payment remains due.

Bear in mind that the JR at this stage is creating a DELAY, not a withdrawal.

If the JR is upheld, HMRC will either challenge or amend the law and go again.

If the JR is rejected, the demand becomes active and I'm not clear that the penalty for non payment would be waived (I'd hope it would but it's not clear).

Pinsent are a good firm and have been active in the film scheme and related worlds for a long time. For all I know they have expertise in the type of contractor schemes we see but as this is JR related, it is perhaps less important.

I am aware of at least three other firms preparing JR challenges in the film world.

One of the grounds of the appeal is the retrospective nature of APN applicability to DOTAS, if the JR is upheld, would it have wider implications?

There is surely a point here in banding together and getting a JR across all the EBT schemes?

[webberg]

One of the grounds of the appeal is the retrospective nature of APN applicability to DOTAS, if the JR is upheld, would it have wider implications?

There is surely a point here in banding together and getting a JR across all the EBT schemes?

Do you know that the JR application has "retrospection" in it?

Generally retrospection is not grounds for JR.

I think the issue with EBT schemes is that HMRC will certainly argue that they are sufficiently different in detail so as to prevent a blanket JR. That would have to be tested in Court before a decision was taken on allowing a JR to go ahead.

The differences between EBT schemes will certainly be exploited by both HMRC and users in the event that a decision is ever reached, so expect it in JR territory.

Generally however I would agree that a "JR fund" to explore what is possible is a good idea.

£50 each from 500 people would be enough to get things rolling BUT... it needs to be soon.

[Vegas]

Surely the costs of a judicial review would be way more than £25k?

[Not Losing Any Sleep]

Surely the costs of a judicial review would be way more than £25k?

Not necessarily, but beware if you lose and have to pay costs for other side. Also, if there is an appeal there will me additional costs.

[dangerouswhensober]

Do you know that the JR application has "retrospection" in it?

Generally retrospection is not grounds for JR.

From the quoted article:

"Jason Collins said that there were several grounds for arguing that the APNs in these cases were unlawful, including the fact that taxpayers that are issued with one have no right to appeal, which is not compatible with human rights legislation. He said the APNs could also be challenged on the basis that the legislation is retrospective because it applies to DOTAS schemes which were entered into before the APN rules came into force."

[webberg]

From the quoted article:

"Jason Collins said that there were several grounds for arguing that the APNs in these cases were unlawful, including the fact that taxpayers that are issued with one have no right to appeal, which is not compatible with human rights legislation. He said the APNs could also be challenged on the basis that the legislation is retrospective because it applies to DOTAS schemes which were entered into before the APN rules came into force."

Ok- thanks and I stand corrected.

I think with the right lawyer, £25k would be enough to understand the grounds for a JR, the risks (costs have been correctly mentioned) and the chances of success, along with lodging an application.

Do not though underestimate the time and effort required to get a group together and run it.

In this instance I suggest that an approach would be for a few people to contact a law firm and ask them for an hour of free time to explain the position and request a quote. That quote to include the law firm acting as trustee for funds collected (or perhaps appointing a separate trustee). Once that happens, then probably the same small group advertising the effort as widely as possible.

Unfortunately I suspect that there will be insufficient incentive to join until APN's start to appear?

[dangerouswhensober]

Unfortunately I suspect that there will be insufficient incentive to join until APN's start to appear?

I agree - but this is exactly the spur that drove the Ingenious Film scheme members to instruct Pincent Masons. So waiting until the APNs appear for your own scheme looks like it isn't "cutting it too fine" - it's just not good project management ...

Also (encouragingly) - the two sample grounds cited by the Pincent partner (i.e. no right of appeal against APNs, and the retrospective nature of the legislation) are not specific to the Ingenious schemes - I would suggest that both of these grounds apply to APNs issued for all schemes. Therefore, if this (specific) JR application succeeds it will provide a very solid precedent for other JR applications.

Final observation - Re: "If the JR is upheld, HMRC will either challenge or amend the law and go again." Understood - but until HMRC finally win the challenge or succeed in amending the law (either of which could take years) then those APNs will remain suspended and/or cancelled (respectively).

(Usual disclaimers apply - I'm neither a trained lawyer or a tax specialist)

[centurian]

Speak to DonkeyRhubarb or others from the BN66 group - s58 bn66 was retrospection in spades, so I think their JR was almost entirely about the retrospective element, but DR can confirm this.

The bad news is - the JR (plus appeal, plus application to SC) failed, so there is some precedent - although that doesn't necessarily mean the precedent would apply to APNs

My (amateur) gut feeling is that the best argument relates to the lack of an appeals process.

[DonkeyRhubarb]

Speak to DonkeyRhubarb or others from the BN66 group - s58 bn66 was retrospection in spades, so I think their JR was almost entirely about the retrospective element, but DR can confirm this.

The bad news is - the JR (plus appeal, plus application to SC) failed, so there is some precedent - although that doesn't necessarily mean the precedent would apply to APNs

My (amateur) gut feeling is that the best argument relates to the lack of an appeals process.

Any JR against primary legislation of Parliament, no matter what the grounds, will be a huge mountain to climb.

Btw, the S58 case is now in the hands of the European Court of Human Rights in Strasbourg.