BIG GROUP

[BrilloPad]

As I said, I'm not a lawyer, but this point we have discussed with a barrister who I trust.

If you have a loan agreement, written or implied, and you are asked for repayment, refuse and the lender takes no action to perfect his claim within 6 years, then his claim can be denied at the end of that period.

If you have a loan agreement, written or implied, and you are NOT asked for repayment, then even if the repayment date passes, the lender retains able to demand repayment and the statute of limitations does not start.

As I said, I'm repeating advice given to us.

It would be interesting to see if there is any case law on that. I reckon it has never happened.

Lets say it does happen and lender asks for repayment of these "loans"(which are really aggressive tax avoidance). The person with the loan refuses to pay. There is no way a lender will get any sort of court order from a judge when the circumstances are explained. I have no doubt HMRC will want their cut. However that is all.

[eek]

It would be interesting to see if there is any case law on that. I reckon it has never happened.

Lets say it does happen and lender asks for repayment of these "loans"(which are really aggressive tax avoidance). The person with the loan refuses to pay. There is no way a lender will get any sort of court order from a judge when the circumstances are explained. I have no doubt HMRC will want their cut. However that is all.

https://www.burges-salmon.com/news-a...n-demand-loan/ gives you a starting point...

[BrilloPad]

https://www.burges-salmon.com/news-a...n-demand-loan/ gives you a starting point...

So basically the "loans" were never loans. Which is what I believe a judge would conclude. They were aggressive tax avoidance. HMRC would want their share.

Please correct me if I misunderstood?

[eek]

So basically the "loans" were never loans. Which is what I believe a judge would conclude. They were aggressive tax avoidance. HMRC would want their share.

Please correct me if I misunderstood?

I think its two separate things:-

1) Yes the loan as repayment has not been asked for may be treated as aggressive tax avoidance and this may be true even if
2) its still possible that the lender may ask / demand that the loan is repaid. That would be the trigger to the beginning of the 6 year settlement rule...

I'll leave the conversation here I think - as its really offtopic for this thread

[webberg]

It would be interesting to see if there is any case law on that. I reckon it has never happened.

Lets say it does happen and lender asks for repayment of these "loans"(which are really aggressive tax avoidance). The person with the loan refuses to pay. There is no way a lender will get any sort of court order from a judge when the circumstances are explained. I have no doubt HMRC will want their cut. However that is all.

With the caveat that I'm not a lawyer, do not confuse what the payments might be for tax purposes, based on analysis for tax purposes, and what the legal documents might define the payments as .

It is entirely possible, indeed probable, that these payments can be different things to different people at different times.

A lender might well get an order from a Judge if that Judge is looking ONLY at the words on the loan agreement and the actions of the parties. This is because a Judge is unlikely to be interested in what a third party, unrepresented in her/his Court (i.e. HMRC) has to say. The point under debate is not what that third party thinks, but rather, as guided by the loan documents, is the action of the parties compliant, non compliant and what, if anything, is the remedy permitted.

In short, look at the rules governing loans and do not assume that tax rules have any influence on those.

[webberg]

I think that perhaps a problem exists with section 6.

Where there are clear provisions for the repayment to be demanded upon the meeting of conditions (perhaps time) then the limitation period cannot begin until that repayment demand is made?

Certainly a lot of the loan documents we have seen would fit within section 6.

That said, I'm now at my limit in terms of legal analysis of hypothetical loan agreements and perhaps should step out of this debate rather than continue to push around concepts with which I am not expert.

I repeat however, we took advice from a reliable and expert source and certainly our actions in this space will be guided by that advice.

[BrilloPad]

A lender might well get an order from a Judge if that Judge is looking ONLY at the words on the loan agreement and the actions of the parties. The point under debate is not what that third party thinks, but rather, as guided by the loan documents, is the action of the parties compliant, non compliant and what, if anything, is the remedy permitted.

So party A gives party B £100. Party B loans £90 to party A as aggressive tax avoidance.

Any judge will look at both transactions. And will ask why party A gave party B £100 in the first place. And if £90 is returned to party B, what will happen to it. Judges are not stupid.

What does your barrister say about that?

[webberg]

So party A gives party B £100. Party B loans £90 to party A as aggressive tax avoidance.

Any judge will look at both transactions. And will ask why party A gave party B £100 in the first place. And if £90 is returned to party B, what will happen to it. Judges are not stupid.

What does your barrister say about that?

He says that is two separate transactions with separate tax and legal analysis.

In some situations you have payment from promoter to trust and then the trust loans to worker. That is two transactions.

The payment to the trust is perhaps a contribution.

The payment to worker is documented as a loan.

HMRC say that the contribution to the trust is taxable income.

However they also say that the loan exists because in their warped world, the worker has legal and beneficial title to the £100 which he used to contribute to the trust (by instructing the promoter to do that) and then he borrows back the £90.

They say this because otherwise their argument in Murray Group is nonsense.

Legally, however, there is a loan from trust to worker and whilst that may have IHT consequences in due course or be caught under the 2019 charge perhaps, it remains legally a loan.

Unless the trust calls for repayment the statute of limitations clock cannot begin.

I agree that Judges are not stupid and they will understand completely that the transaction viewed as a whole is tax planning device (I'm not sure I know what aggressive tax avoidance actually is) but if they are being asked to consider "did the loan exist and was repayment demanded?", our advice is that they will confine themselves to that questions and not seek to do the job of the tax courts.

[Golddustz147]

AML latest update on the tax avoidance - As Expected

Hi Guys,
I Was not counting my chickens and realized my time against delaying payment to HMRC was coming to an end. I Got the final usual confirmation from AML as per below ; They obviously were just biding time. As per the below document
We write to keep you updated with regards to your return(s) where HMRC have issued a S.9A enquiry relating to your membership of the AML PCC.



AML Tax (IOM) have been in dialogue with HMRC for some time now, and in the earlier stages of the enquiry, HMRC selected a handful of sample cases, whereby we responded in full to HMRC’s information requests. You are not a sample case.



Since then HMRC have had time to review this information and recently issued Closure Notices to the sample cases, to the effect that they believe any monies received should be treated as self-employed income. For the avoidance of any doubt, AML firmly disagree with HMRC’s decision and we have already appealed their Notice. HMRC have since offered a Statutory Review for the sample case enquiries, which we have accepted. This means that the S.9A enquires will undergo another review by an independent Officer.

The correct course of action is to progress all S.9A enquiries together and at the same time. We therefore wish to request a Closure Notice on your behalf, in respect of your S.9A enquiries. The Closure Notices are not a surprise to AML, nor do we view them as a final decision. HMRC have followed a review process which we foresaw, and we have our detailed technical arguments in place. We believe that this course of action is in your best interests.



Should we not receive any objections from you by 30 June 2017, we will automatically proceed to request Closure Notices on your behalf.



If the Closure Notices are issued, please note that they will include an amount of tax that HMRC believe you owe, therefore, it is imperative that a copy is sent to us as soon as possible so that we can appeal against the notices and request the postponement of tax. You can view an example of a closure notice by clicking here. The next steps will be communicated to you in due course.



We look forward to hearing from you soonest and we would like to take this opportunity to thank you for your patience thus far.



We will continue to inform you of any movements and if you have any queries in the meantime, please do not hesitate to contact us.



Yours



AML Tax (IOM) Limited

E. [email protected]



The s.9A forms will be coming to all over the next few weeks . I additionally had to paid for Sanzar partnership involvement 2 years back totaling another massive lump sum.

Best advice is to deal with HRMC directly and arrange a decent affordable repayment plan scheduled before all the tax continues to mount up on payments etc. I ended up taking on a bank loan to pay HMRC in one final lump sum..... The offshore schemes have dominated my life the last 5 years.... It had to come to an end.

GOOD LUCK TO ALL - but remember its just a matter of time and you are all just delaying the inevitable.. Viz paying HMRC !

[webberg]

The post above, one of several in a similar vein made by the poster, I have responded to elsewhere.

To my knowledge the poster is not (yet) a member of Big Group.

We (Big Group) have seen the AML notice and we have provided information on that to our members.

Elsewhere in these threads I have addressed some of the factual issues that arise from that notice and have tried to bring some balance to some of the more extreme conclusions that appear to have been drawn from what is a pretty sensible note explaining matters quite clearly.

Otherwise, I suggest that if you have the notice and are unclear as to what it means, then contact the AML email given and/or seek your own advice.

Speculating as to the consequences is not helpful.