BN66 - the road to Judicial Review

[smalldog]

I am still chuckling to myself about your comment DR about standing up in the court and proclaiming Im Donkey Rhubarb, cracked me up when I read it...

[TheBarCapBoyz]

We can't get over the fact that Singh quoted stuff from this forum.

Can someone remember what posts were quoted?

(It wasn't our "Barclays Capital is a hot bed of tax avoidance" was it?)

Damn we said it again.

oops, sorry Barclays.

[Tax_shouldnt_be_taxing]

Well worth taking a few minutes to read.

http://forums.contractoruk.com/1052424-post1992.html
http://forums.contractoruk.com/1052428-post1993.html

Thanks DR.

As I couldn't make the JR (working late on a project), I decided to use any spare time asking "favours" of those who have a better take on law and have no involvement in this. It cost me a rather nice bottle of wine though, but worth it. I really have a problem with the HMRC position of scale. Huitson is an individual. Yes, his tax affairs are planned via others, but he has no control over the scale of use nor the monies involved for others. I just don't see how the actions of the collective can be used as a trigger to target the individual.

Imagine if "scale of abuse" became the norm in all law to warrent a retrospective application of the law which had discretion that was never execised? It's like an insurance policy for HMRC.

Maybe I'm wrong, but I'm not familiar with a law that is only excercised when then scale of alleged breach reaches a threshold and then punishes those who were inside the threshold equally to those who tipped the issue over said threshold.

It could be argued that Huitson should pay nothing and the bod who was the unlucky (come in #2000, your time is up) one who triggered the "scale" argument should be hit for a cool 200M. But is that fair and proportionate? Of course not. But nor is slamming Huitson.

Retrospection from the multitude of discriminations it will conflict with brings Article 1 Protocol 1 into play for any number of users. Some more than others, but to determine that level of discrimination would require certainty. The latter is sadly lacking in this whole sorry story.

There is a solution to all of this. Element 1 of BN66 confirms that Padmore applies as it always had and that via element 2, no such DTA claims will be allowed from 12th March 2008. Result, a loophole is clearly closed and any losses to the Exchequer via the DTA is halted. HMRC should perhaps think like an accountant They didn't make a loss from this, they made a negative profit.

[administrator]

Before anyone leaves the country or does anything hasty remember that HMRC watch these forums and might ask CUK who you are to stop you.

As we have seen in the past cuk is quite happy to shop us - personally I would prefer another forum where we get some sort of protection.

My advice - just do what you are going to do and dont publicize it until you are done.

What? You are way past the mark there Brillo.

You know exactly what happened with that situation. We were contacted by some fairly heavy weight police due to threats being made to members of HMRC on this thread. I take user's privacy as my main concern on here and did not release any details despite the police requesting I do so. I asked if they had the correct paper work to make me hand over details and they did not. I assured them that the comments were tongue in cheek and offered to contact the users they wanted to hear from and ask that they call the investigating officer to explain themselves. They did this and the problem was resolved. I also knocked down the list of people they wanted to talk to from 15 or so to 5 as the other 10 had not made any comments of a threatening nature. You even thanked me at the time for the way this was handled. At no point did we, or would we, hand over users details.

I suggest you apologise and retract your comments above.

[smalldog]

What? You are way past the mark there Brillo.

You know exactly what happened with that situation. We were contacted by some fairly heavy weight police due to threats being made to members of HMRC on this thread. I take user's privacy as my main concern on here and did not release any details despite the police requesting I do so. I asked if they had the correct paper work to make me hand over details and they did not. I assured them that the comments were tongue in cheek and offered to contact the users they wanted to hear from and ask that they call the investigating officer to explain themselves. They did this and the problem was resolved. I also knocked down the list of people they wanted to talk to from 15 or so to 5 as the other 10 had not made any comments of a threatening nature. You even thanked me at the time for the way this was handled. At no point did we, or would we, hand over users details.

I suggest you apologise and retract your comments above.

Hi admin.....I dont quite get how the police could actually do anything anyway, when my mother was threatened by her ex husband they said "nothing we can do til he beats you up", or is there one rule for the masses and another rule for our friends at HMRC or the government, Im guessing there probably is...

[MKing]

@Rhydd

As long as learned professionals can agree that the law was meant that way - a piece of unclear (to the masses) law can be clarified - there is an onus on Parliament to ensure that its laws are available to the masses, to ensure that they are complied with.

This is especially pertinent where "action" is taken by individuals (e.g. tax planning) where the arrangements have been determined by an "expert" in the particular field.

Of course there then has to be the argument of whether it is proportionate to retrospectively enact such legislation - if it is determined to be a clarification, then (even without proportionality) they are entitled to retrospectively apply the law (ignorance is no excuse in the eyes of the law) - but (I believe) historically most cases of clarification have led to forward application with "arrangements" for infringers.

Now it would seem self evident that this arrangement was not stopped by clarification, but by a change in legislation BN66, so there can be no retrospective application of the law.

It is not sufficient for Parliament to have "meant" something, if that meaning was not properly captured in the legislation - or is at odds with other legislation. It is the Letter Of The Law that counts. It would entirely undermine the rule of law if there could be subjective interpretation of the law (ok we might argue that some judges have crossed that line, but it is a general principle that it is the objective application that should be applied, even if the spirit is obvious. e.g. the recent case of the brothers jailed for beating the intruders, the first trial judge had to objectively follow the law and pass (the jail) sentence).

Good luck all.

[administrator]

Hi admin.....I dont quite get how the police could actually do anything anyway, when my mother was threatened by her ex husband they said "nothing we can do til he beats you up", or is there one rule for the masses and another rule for our friends at HMRC or the government, Im guessing there probably is...

When threats (have PMd you details) are in writing on a public forum it is a little different to "he said he would beat up". I am sure the PM details will assure you that the police did need to investigate and if you knew all the details I am sure you would agree that we handled this in the best interests of the individuals and certainly did not bend over and "shop" users of the forum.

[DonkeyRhubarb]

There is a solution to all of this. Element 1 of BN66 confirms that Padmore applies as it always had and that via element 2, no such DTA claims will be allowed from 12th March 2008. Result, a loophole is clearly closed and any losses to the Exchequer via the DTA is halted. HMRC should perhaps think like an accountant They didn't make a loss from this, they made a negative profit.

Unfortunately, HMRC are behaving like a spoiled child that can't get their own way and having a

They realised they couldn't win fairly so they decided to cheat by changing the ground rules after the event.

This might work in the school playground but not in a court of law.

[PlaneSailing]

Lurch

I would like to share with you some of my reflections on the proceedings.

Firstly, it was great to finally meet up with some of the people off the forum and put faces to the various characters.

Revelations

From my perspective, the only significant revelation to come out during the entire course of the two days was the existence of an internal technical note (No. 63) published within HMRC in 2002 stating that they didn’t know how to challenge the scheme from a legal standpoint. Some of the letters they subsequently sent us from 2003 onwards made reference to challenging the scheme using arguments which they had already rejected or at least cast doubt on in this technical note.

I have raised an FOI request to get this document put into the public domain.

http://www.whatdotheyknow.com/request/technical_note_63

.

Trying to get back to the point.....

I didn't receive a reply from Mr Timms after my MP asked him
what he was up to. Am I right in thinking he said:

'At no point did the Revenue think that the scheme worked' ?

If that's the case, this note confirms that to be untrue, and
he owes us an explanation.

[SantaClaus]

What? You are way past the mark there Brillo.

You know exactly what happened with that situation. We were contacted by some fairly heavy weight police due to threats being made to members of HMRC on this thread. I take user's privacy as my main concern on here and did not release any details despite the police requesting I do so. I asked if they had the correct paper work to make me hand over details and they did not. I assured them that the comments were tongue in cheek and offered to contact the users they wanted to hear from and ask that they call the investigating officer to explain themselves. They did this and the problem was resolved. I also knocked down the list of people they wanted to talk to from 15 or so to 5 as the other 10 had not made any comments of a threatening nature. You even thanked me at the time for the way this was handled. At no point did we, or would we, hand over users details.

I suggest you apologise and retract your comments above.

I agree with you that you did your best to diffuse the situation and I thank you for that, but it does call into question the ability of the authorities (including HMRC) to force identities on this forum out into the open.

Also as we have seen at the JR, HMRC are more than willing to quote excerpts from this forum in court. There's no reason why they wont do again. Hence the need for a private forum where every member is certified as bona fide.