BN66 - the road to Judicial Review

[Tax_shouldnt_be_taxing]

The Last Post (for 2009)

They removed it because FA 2008 made it obsolete. Even without the retrospective part of BN66, there was a second measure passed at the time preventing these types of scheme working in the future, so the guidance is no longer relevant.

DR, you make a valid point. Of course HMRC needed to remove that text as BN66 made it obsolete. Yet they could have left the text that referred to applying retrospective legislation there except that was never part of the text. So for anyone organising their affairs inline with legislation at the time or HMRC guidelines would have seen before 2008 that the scheme could not fail and that retrospection was not part of HMRC's remedy.

So if in say 2006 you consulted HMRC guidelines and referenced all return inquiries that had been closed, checked HMRC's position on the specific context of the scheme via their own documents, looked for any reference to 1987 or IR35, confirmed that transparency was key to all avoidance, found out that HMRC had never seen such a scheme in practice before 2001, you're legitimate expectation would allow you to use the scheme in such a context without the fear that BN66 was coming down the road.

Well, retrospectivley (or in hindsight) that is clearly not the case. God help those who go about arranging their affairs transparently only to find that years later, HMRC decide to apply new rules back-dated.

So, Happy New Year to all and let's hope that 19th Jan gets some fair and proportionate justice applied to this whole sorry story. And in doing so, Democracy and transparency will be shown to prevail.

[ASB]

I don't think HMRC non disclosure will wash in the JR - can an organisation perjure itself?

The simple answer to the question is yes. But...

Firstly, that has not yet happened. What HMRC may say in open correspondence is simply their opinion. It may be that they have a duty of care, in which case there may arguably be a breach, however further information may come to light and realistically an individual inspector cannot be expected to know what SCO/SI may later say.

Non disclosure should not wash in the JR, however this is largely a matter for the respective legal teams to argue about. It is possible that they could move to have the proceedings in private though.

Within the JR oral evidence - if there is any - will be obtained under penalty of perjury. This is not necessarily the same for written evidence as part of the trial bundles. Thus, in general, it is likely that the other legal team will need to be able to try and refute things. Clearly contradictory opinions from different people will make this job somewhat easier.

To a large extent the evidence comes down to what HMRC have interpreted the law as, and the practices they have evolved around that. The fact that HMRC may have chosen to change their interpretation is their right - however that may well weaken their case.

It is entirely possible that written evidence is obtained under threat of perjury. In this case it is likely that the individual could have perjured themselves. However the test is not whether what they have said is correct (choosing that word instead of true intentionally), it is whether they reasonably believed it to be correct.

[Emigre]

Welcome

Hi and thanks to DR and co for your relentless fight and support of this case.

I've been an avid watcher of the posts for a couple of years now and take great comfort in the information and comments put forward on this thread.

Could somebody confirm what the likely timeline is going to be after the 19th should we win or lose ? Will there be a verdict that day or is it just a hearing ? Once a decision is known, how long would an appeal take ? What other course of action is likely ?

Keep up the fight - great job !!!

Welcome to this thread. Love the name, you're right, we've GottaBeOptimistic that sense, justice and proportionality will prevail.

Regarding dates, it is unlikely we will get a verdict on the day - I understand it may take up to 6 weeks after the Hearing. There are more than two possible verdicts. ie we win, they win, something in the middle. It could be that we win some elements and HMRC win some, it may not be cut and dried.

Its my understanding that MontP will appeal as far as they need to or as far as they are allowed, however that will always be their decision. Who knows what HMRC will do in the event they lose.

In addition to that PwC and Shiner have a slightly different legal angle against HMRC that they are pursuing and Steed have taken their case straight to the ECHR. The timetabling for all these cannot be estimated. Certainly, an Appeal for us would be lucky to fall within 2010.

Once again, welcome.

[Emigre]

The simple answer to the question is yes. But...

Happy New Year ASB, and once again thanks for your pearls of wisdom from someone not directly impacted by s58.

[ASB]

Happy New Year ASB, and once again thanks for your pearls of wisdom from someone not directly impacted by s58.

And a happy new year to you too Emigre.

[KiwiGuy]

Happy new year

Hey all, happy new year to you all, roll on 19th

[ROBIN REDBREAST]

Its all gone very quiet!

Now less than 2 weeks to "D" day...are there any updates? Has anybody been in touch with MP?

[DonkeyRhubarb]

Quiz

To pass the time between now and the hearing I thought I'd set a little quiz.

Here is the first question, with more to follow over the next few days. (The answers will be revealed in a couple of week's time.)

Question 1

Stephen Timms wrote to many of us last year stating:

"The Government does not believe that the scheme achieved its purpose since the 1987 legislation clearly applied to it."

When did this first become "clear" to HMRC?

a) 1987
b) Winter 2001
c) Spring 2003
d) Spring 2005
e) Autumn 2007

[SantaClaus]

To pass the time between now and the hearing I thought I'd set a little quiz.

Here is the first question, with more to follow over the next few days. (The answers will be revealed in a couple of week's time.)

Question 1

Stephen Timms wrote to many of us last year stating:

"The Government does not believe that the scheme achieved its purpose since the 1987 legislation clearly applied to it."

When did this first become "clear" to HMRC?

a) 1987
b) Winter 2001
c) Spring 2003
d) Spring 2005
e) Autumn 2007

Can I phone a friend?

[silver_lining]

Can I phone a friend?

Yes you can Mr Claus, I will be your friend for this Q.....

I don't know the specific answer, but I can offer something which may help you with your conclusions.... I can advise with 100% certainty, it was last minute, and at the exact same time they had that Eureka moment... ie 'oh sh*te we are f**ked and need to invoke plan z.... leglislation'.