BN66 - Time to fight back (Chapter 3)

[ASB]

One point MP did not make clear; does this now mean HMRC can look to recover the money immediately, or does the resubmission mean nothing has changed in respect of its clients appeals?

Well.........

I don't think it actually strictly changes anything.

The procedure is:-

- HMRC issue an assessment after an enquiry
- There is a bunfight about whether it is right
- Eventually a closure notice is issued and an appeal may be lodged
- HMRC are still only stating an opinion
- If an appeal is lodged it requires a commissioners hearing (or capitulation) to actually move for enforcement.

[This might not be entirely accurate but is my recollection - a taxpayer can dispute anything they damn well like and it takes a commissioner to actually force (or strictly start the process of forcing) it's payment].

The difference I see is that HMRC may now be more likely to possibly try and force the issue with a test hearing. They have always had that option, but hadn't yet taken it. Maybe they will now.

[BrilloPad]

Well.........

I don't think it actually strictly changes anything.

The procedure is:-

- HMRC issue an assessment after an enquiry
- There is a bunfight about whether it is right
- Eventually a closure notice is issued and an appeal may be lodged
- HMRC are still only stating an opinion
- If an appeal is lodged it requires a commissioners hearing (or capitulation) to actually move for enforcement.

[This might not be entirely accurate but is my recollection - a taxpayer can dispute anything they damn well like and it takes a commissioner to actually force (or strictly start the process of forcing) it's payment].

The difference I see is that HMRC may now be more likely to possibly try and force the issue with a test hearing. They have always had that option, but hadn't yet taken it. Maybe they will now.

I thought the letter made it clear? Maybe I misunderstand the above? Read the section under "tax appeals" : in particular the paragraph beginning "It is important to understand....".

I dont want to quote wholesale the letter : I doubt HMRC read this but you never know!

Apologies I just read you are not in the scheme so wont have the letter. I will PM you.

[poppy01]

I thought the letter made it clear? Maybe I misunderstand the above? Read the section under "tax appeals" : in particular the paragraph beginning "It is important to understand....".

I dont want to quote wholesale the letter : I doubt HMRC read this but you never know!

Apologies I just read you are not in the scheme so wont have the letter. I will PM you.

i was in the scheme and dont have it, not on the maling list you see, seems too hard to get on it, emails not answered etc..

personally I think the games up re the JR, if we cant even get it agreed, what chances even if we do get one. courts are in the pocket of new labour and hmrc, wonder how much was in the brown envelope?

[PlaneSailing]

Retrospection 2004

DR, you raise some pertinent cutting questions.

This was always going to be a really difficult hurdle for MP to overcome via a written JR submission. From what I can see on the letter from MP received today; the High Courts first reason for refusal rests squarely on one's interpretation of the word 'partner'. Obviously HMRC/ Government are pushing a subjective extended meaning coupled with their argument of intention, which may or may not seem obvious when reviewed depending on your position.

Our opinion is obviously that the word partner in this context has nothing but its normal meaning. The High Court have now made their position categoric and they disagree. The re-submission of the JR and the fact its an oral submission will certainly help to convince the High Court otherwise. However IMHO, this specific point is going to be an up hill battle as we now have HMRC/ Government and High Court at least agreeing on this particular point and MP apparently have no evidence to prove a different interpretation has already been demonstrated.
....
SL

The rejection of the JR seems a bit odd. The acceptance that retrospection
is valid in all tax avoidance is flawed. The pre-budget report in 2004
laid down that income tax avoidance 'could' be back dated to Dec 2004, not
any further. Was the Judge made aware that the legislation was being back
dated way beyond this point, by the Government's own admission?

http://www.dre.co.uk/pdfs/pre-budget...0-%20final.pdf

I know that the accountancy bodies have been all over this, as it is, yet
again, badly drafted.

Admittedly, we were told this didn't affect us....

I'm hoping that the rejection of the JR was an 'over sight' as this case is
obviously contentious. I'm sure the next time round we'll be better placed.

Regarding appeals, perhaps someone could enlighten me, but I as under the
impression that the Commissioners could only implement the law as it is
written, they won't change it.

[BrilloPad]

i was in the scheme and dont have it, not on the maling list you see, seems too hard to get on it, emails not answered etc..

personally I think the games up re the JR, if we cant even get it agreed, what chances even if we do get one. courts are in the pocket of new labour and hmrc, wonder how much was in the brown envelope?

No way!!!!!! Who lost at Dunkirk then went on to win WW2?

I will PM you the letter........

[TheGadgetMan]

No way!!!!!! Who lost at Dunkirk then went on to win WW2?

I will PM you the letter........

BP

I totally agree with you...there is no way that this is the end...all thats happened is that HMRC have won a battle...perhaps a significant battle, yes...but this is only the first stage...there is still a long way to go yet and other avenues to be explored by MP...plus other interested parties are forming their own cases...

if there's one thing that should still give you hope is that MP themselves have multi-millions riding on this one case...and perhaps their whole future credibility as a respectable tax-planning organisation...

now, ask yourself again...do you think MP are going to give up at this first obstacle? I don't think so....

Come on guys...keep the faith...we know we are in the right...this is by no means the end...

[bananarepublic]

There is evidence that HMRC gave more favourable terms to other tax payers using an identical scheme to MP. They settled in 2003 - fact. I also know that for several more years after this favourable terms could be achieved by settling. That is no NI and a discount on the tax owed. HMRC and others have this evidence ("no comment" - was the response of mr you know who) - is there any way to force HMRC to disclose this or can they deny that any such arrangements existed in the courts?

As for the original 1987 law change my take on reading the transcripts is that the change was targetted at very specific circumstances. The reason for retrospection was very clearly explained and in that instance seemed reasonable. In refusing leave for a judicial review the high court are clearly on very thin ice.

[BrilloPad]

BP

I totally agree with you...there is no way that this is the end...all thats happened is that HMRC have won a battle...perhaps a significant battle, yes...but this is only the first stage...there is still a long way to go yet and other avenues to be explored by MP...plus other interested parties are forming their own cases...

if there's one thing that should still give you hope is that MP themselves have multi-millions riding on this one case...and perhaps their whole future credibility as a respectable tax-planning organisation...

now, ask yourself again...do you think MP are going to give up at this first obstacle? I don't think so....

Come on guys...keep the faith...we know we are in the right...this is by no means the end...

Its not even the end of the beginning yet.......

[BrilloPad]

There is evidence that HMRC gave more favourable terms to other tax payers using an identical scheme to MP. They settled in 2003 - fact. I also know that for several more years after this favourable terms could be achieved by settling. That is no NI and a discount on the tax owed. HMRC and others have this evidence ("no comment" - was the response of mr you know who) - is there any way to force HMRC to disclose this or can they deny that any such arrangements existed in the courts?

As for the original 1987 law change my take on reading the transcripts is that the change was targetted at very specific circumstances. The reason for retrospection was very clearly explained and in that instance seemed reasonable. In refusing leave for a judicial review the high court are clearly on very thin ice.

CanPayButWouldRatherNot was in the Suo Moto scheme and knows others who were......

[silver_lining]

There is evidence that HMRC gave more favourable terms to other tax payers using an identical scheme to MP. They settled in 2003 - fact. I also know that for several more years after this favourable terms could be achieved by settling. That is no NI and a discount on the tax owed. HMRC and others have this evidence ("no comment" - was the response of mr you know who) - is there any way to force HMRC to disclose this or can they deny that any such arrangements existed in the courts?

As for the original 1987 law change my take on reading the transcripts is that the change was targetted at very specific circumstances. The reason for retrospection was very clearly explained and in that instance seemed reasonable. In refusing leave for a judicial review the high court are clearly on very thin ice.

If there is evidence; now was not the time to sit on it. Not sure why enough amunition was not exposed at this stage to at least ensure the JR was heard..... but alas there is a second bite (and a 3rd if required: "If the judge refuses permission, the claimant is entitled to seek (within seven days) that the matter be reconsidered at an oral hearing (under CPR 54.12). If at the oral hearing the judge again refuses permission, the claimant will have a right to apply for permission to appeal to the Court of Appeal against that refusal pursuant to CPR 52.15") at the cherry and I sincerely hope MP have learnt lessions and will go to any lengths to secure the hearing.

Regarding, brown envelopes etc. lets not forget that there is significant amounts of money riding on this and that the Administrative Courts are merely another branch of Gov/ Parliament... putting all this together coupled with current economic climate, the maths is not difficult and 'lord' only knows what dialogue is going on behind closed doors which can potentially influence decision........