BN66 - the road to Judicial Review

[travellingknob]

Haha, just looking through some older posts and never seen so many of us online at the same time before

[johnnyguitar]

Well said.

Remember the Judge is making a decision on the law and how it applies to our case not some emotive issue. The fact that he is grasping the issues only goes to give us confidence that he will make a fair and reasoned judgement. It does not not mean he will agree with our viewpoint.

So far no-one has reported back on the human rights issue associated with retrospective legislation which I believe is what he's supposed to make the judgement upon.

The retrospectivity is the main issue and has been mentioned several times.
It looks like bascially we're trying to pre-empt and HMRC argument:

1.they will say that they were investigating all along, therefore it's not retrospective. They claimed from 2001 that it didn't work

2. our response is that they never clearly stated HOW it didn't work and bscially they didn't know how. They can't just issue a standard 'it doesn't work' statement and then put everyone in limbo whilst they come up with a valid argument.

3. they bascially still don't have an argument why it doesn't work. They used the government to introduce a change which they applied restrospectively claiming it was always the case - but we'eve show they they didn't believe that it always applied otherwise they should/would have used it before.

[rosbiff]

The retrospectivity is the main issue and has been mentioned several times.
It looks like bascially we're trying to pre-empt and HMRC argument:

1.they will say that they were investigating all along, therefore it's not retrospective. They claimed from 2001 that it didn't work

2. our response is that they never clearly stated HOW it didn't work and bscially they didn't know how. They can't just issue a standard 'it doesn't work' statement and then put everyone in limbo whilst they come up with a valid argument.

3. they bascially still don't have an argument why it doesn't work. They used the government to introduce a change which they applied restrospectively claiming it was always the case - but we'eve show they they didn't believe that it always applied otherwise they should/would have used it before.

Thanks JG :-)

Put like that I believe we'll win.

[portseven]

Did anyone see YouKnowWho there? Wonder if any of them turned up?

[johnnyguitar]

and the judge, when discussing Padmore, even pre-empted our man by saying that Padmore was clearly meant to apply specifically to 'partnerships,partners' etc NOT trustees. This was identified not only by the specific wording in the Padmore ruling but also by the case/issue it was addressing.

So, the HMRC argument that it clearly applied (trustees) to us doesn't wash with him.

[robinhood]

and the judge, when discussing Padmore, even pre-empted our man by saying that Padmore was clearly meant to apply specifically to 'partnerships,partners' etc NOT trustees. This was identified not only by the specific wording in the Padmore ruling but also by the case/issue it was addressing.

So, the HMRC argument that it clearly applied (trustees) to us doesn't wash with him.

Thats what the judge said ??? Sounds like a bodyblow for HMRC.

[srhcompcon]

keep up the good work on the updates

[SantaClaus]

Quick update

Elvin still speaking.

Continued to refute HMRC evidence. Long discussion about Double Taxation Agreements and how they are not an instrument to avoid paying tax, but to avoid incurring double tax. References to a "Pirelli" case.

Also discussion on proportionality (relating to human rights I think) and that a proportional response from govt. would be to legislate only for the future and not retrospectively.

A lot more being discussed, but hard to type from little PDA.
Will post updates if anything interesting arises.

[johnnyguitar]

Thats what the judge said ??? Sounds like a bodyblow for HMRC.

Don't quote me on his exact words but from my view of it, he was agreeing that it (Padmore) was specific to partnerships and he seemed to respond positively when Elvin described how our setup was different.
I guess HMRC could try to convine him otherwise, but he seems well-read on the differences - i.e. control, influence etc

[nuffsaid]

So far no-one has reported back on the human rights issue associated with retrospective legislation which I believe is what he's supposed to make the judgement upon.

By proving that we was not caught under the old wording is in fact proving that the so called "clarification" is actually a change and therefore automatically against Human Rights - back dating tax law is not a proportional response, they've had 6 years to stop this.