BN66 - Time to fight back: Continued

[ASB]

This may be a daft question but do they need to take every single case individually to the Commissioners?

It depends on the outcome and how stubborn or otherwise the recipients of the closure notices are. But it is possible (though in practice extremely unlikely)

Let's assume you are a test through the commissioners and you win.

Everybody else then submits additional information in their pending appeals citing your victory at the commissioners. HMRC then withdraw their closure notices - they may even be proactive themselves in this. However they don't have to do this, they could still list them for hearing etc, it depends on the facts of each individual case (they could be slightly different, though it doesn't seem likely).

Clearly letting them go forward is in nobody's interest and when it gets to the point that it is obvious user X has the same facts as DR and is going to cite HMRC v DR in their case the HMRC should concede default.

Let's assume you lose.

It's pretty much the above but in reverse. HMRC will press ahead with trying to collect on the closure notices. They are likely to mention "look this judgement is the same facts as yours so just pay up". The tax payer can still appeal. Though when he get representation they are likely to suggest that it is pointless. However it is feasible that the second taxpayer may be able to gain another hearing if they can establish that the first set of commissioners decision was perverse. Essentially the second taxpayer would have to find reason to challenge the original finding (and this has to be on a legal basis rather than "I didn't like it").

Where the case is decided also has a bearing. The general principle is that it sets precedent at that level or lower - when applied to the same facts. So for this to be not applied to sombody else then they need to get into a higher court, and this can only happen on a point of law. The facts are now determined, it's just how the law applies to those that is up for debate. [Part of the initial hearing is to decide what the facts in actuality are]

[BrilloPad]

Hope all is well Brillo. We'll have to meet for a shhhhhhh! ....

c o f f e e


sometime.

Maybe we should throw it open to all-comers this time? As long as they pay.......

[BrilloPad]

It depends on the outcome and how stubborn or otherwise the recipients of the closure notices are. But it is possible (though in practice extremely unlikely)

Let's assume you are a test through the commissioners and you win.

Everybody else then submits additional information in their pending appeals citing your victory at the commissioners. HMRC then withdraw their closure notices - they may even be proactive themselves in this. However they don't have to do this, they could still list them for hearing etc, it depends on the facts of each individual case (they could be slightly different, though it doesn't seem likely).

Clearly letting them go forward is in nobody's interest and when it gets to the point that it is obvious user X has the same facts as DR and is going to cite HMRC v DR in their case the HMRC should concede default.

Let's assume you lose.

It's pretty much the above but in reverse. HMRC will press ahead with trying to collect on the closure notices. They are likely to mention "look this judgement is the same facts as yours so just pay up". The tax payer can still appeal. Though when he get representation they are likely to suggest that it is pointless. However it is feasible that the second taxpayer may be able to gain another hearing if they can establish that the first set of commissioners decision was perverse. Essentially the second taxpayer would have to find reason to challenge the original finding (and this has to be on a legal basis rather than "I didn't like it").

Where the case is decided also has a bearing. The general principle is that it sets precedent at that level or lower - when applied to the same facts. So for this to be not applied to sombody else then they need to get into a higher court, and this can only happen on a point of law. The facts are now determined, it's just how the law applies to those that is up for debate. [Part of the initial hearing is to decide what the facts in actuality are]

Interesting post.

Isn't the montp defence to the commissioners that the JR is still ongoing? How likely is that to succeed?

[SantaClaus]

Maybe we should throw it open to all-comers this time? As long as they pay.......

The more the merrier!

[DonkeyRhubarb]

Interesting post.

Isn't the montp defence to the commissioners that the JR is still ongoing? How likely is that to succeed?

Presumably if the test case is lost at the Commissioners Hearing, which I guess it would be since they will undoubtedly uphold the law as it stands, then the next step would be to appeal to the High Court.

If I recall correctly, didn't MP state one of their reasons for opting for the JR route was to short-cut the normal appeals process which would eventually end up in the High Court anyway?

I wouldn't be at all surprised if copies of that "Newsletter" have been sent to local tax offices, some of which have been dragging their heels because of the JR.

[BrilloPad]

Presumably if the test case is lost at the Commissioners Hearing, which I guess it would be since they will undoubtedly uphold the law as it stands, then the next step would be to appeal to the High Court.

If I recall correctly, didn't MP state one of their reasons for opting for the JR route was to short-cut the normal appeals process which would eventually end up in the High Court anyway?

I wouldn't be at all surprised if copies of that "Newsletter" have been sent to local tax offices, some of which have been dragging their heels because of the JR.

Indeed. Dont someone from montp mention 2 possible routes at one point? I just hope it happens as fast as possible....

I hope the local tax offices get up to speed - good luck to HMRC central office.

[ASB]

Interesting post.

Isn't the montp defence to the commissioners that the JR is still ongoing? How likely is that to succeed?

That is not a defence to the commissioners as such. It is (sort of) a delaying tactic. Neither side will be wanting to actually have a commissioners hearing until the outcome of the JR is known (since the commissioners cannot make any declaration of incompatibility).

So, in terms of the JR it may be the case that the court can overturn the law (in general they can't though - it depends on exactly what is being JR'd and why). So let's assume the JR is "won" with a "declaration of incompatability". What happens next could be a number of things:-

1) HMRC proceed and there is a test case at the commissioners. The fact that there is a declaration of incompatibility will affect the decision and will *probably* defer judgement. This doesn't (of itself) allow them to say "Mr BP you win" because the law is still in place. [Obviously if the hearing did occur in this state you could still win in any event on some other ground]

2) An appeal process through the ECHR is undertaken to try and get it struck out. The ECHR can order this to happen but cannot (due to sovereignty of parliament) actually force it happen. Though in practice we will comply - eventually.

3) The government produce an amendment so that it is compatible with ECHR. Or change it in some other way, pull the retrospective nature or whatever. Then it's back to "shall we have hearing, shall we have a JR" etc.

So, I don't think there is a defence to the commissioners as such. I don't believe there is a case listed - because of the open question of the JR.

[silver_lining]

I got mine letter today, it was emotional as I really had missed them of late! Not even sealed.... lazy moefo's

Anyhow, I wouldn't put too much effort into trying to dissect the newsletter, newsletter! the more I say that the more it cracks me up.... you would almost swear we had a subscription to it

Anyhow regarding moods, feeling etc.... HMRC are simply following the text book, so this should not be interpreted as positive...... other than we have been officially informed.

Interesting that they mention the whole incompatibility thing.... its almost like they have cut and paste from the forum. It suprises me they choose to mention in this in the letter at all..... school boy legal tactics.

but at least we can sit tight and still afford an Xmas tree for the kids :-) ... albeit an artificial one

[dr_heathcliff]

De-Lurke

Ok,

So I thought I'd better de-lurke myself after following the thread since it's inception.

Been in the scheme since 2004 and stand to owe a similarly large ammount of money I don't have if HRMC have their way.

I too laughed about the "newsletter" when my wife read it to me over the phone today - I asked her if there was an "unsubscribe" option anywhere ;-)

I definately won't be paying and too believe we have a reasonable chance of success, particulary as I suspect MontP will have as much to loose as us if we don't.

Roll on the JR!!!

[BrilloPad]

I got mine letter today, it was emotional as I really had missed them of late! Not even sealed.... lazy moefo's

Anyhow, I wouldn't put too much effort into trying to dissect the newsletter, newsletter! the more I say that the more it cracks me up.... you would almost swear we had a subscription to it

Anyhow regarding moods, feeling etc.... HMRC are simply following the text book, so this should not be interpreted as positive...... other than we have been officially informed.

Interesting that they mention the whole incompatibility thing.... its almost like they have cut and paste from the forum. It suprises me they choose to mention in this in the letter at all..... school boy legal tactics.

but at least we can sit tight and still afford an Xmas tree for the kids :-) ... albeit an artificial one

top post - really made me laugh

of couse we know forum is read - interesting it also gives them ideas for the newsletter! I wonder which posts they will include next time?

BP