BN66 - Round 2 (Court of Appeal)

[smalldog]

You hit the nail on the head SL.

Our case rests on how wide that margin of appreciation is.

Is it so wide that any tax law passed by Parliament automatically falls within it?

Or are there limits?

The main thrust of Elvin's argument this week was that the degree of retrospection in s58 way oversteps the mark of what could be considered proportionate.

If the court disagrees with this and rules that s58 does fall within the margin then it begs the obvious question:

Just how extreme would a tax law have to be to breach A1P1?

DR, as a wild guess I assume it could be an assessment of how much of the population are affected and to what extent. However that then opens the floodgates to lots of changes impacting a small set of people which when combined equate to a large number therefore sidestepping that kind of protection...who knows...

[silver_lining]

...

Just how extreme would a tax law have to be to breach A1P1?

DR,

This is the issue, its an unknown quantity baring whats gone before, i.e. case history.

But to some extent what we do know is artificiality is important in the consideration of margin; as such I feel we needed to address this specific point head on and narrow the scope of this margin (note: we may have done that?); and actually I don't feel (at least from non-legal perspective) it should have been that hard to draw analogies between existing businesses where retrospection never or does not figure whatsoever.... and I would ask why not.. is that not discrimination and disproportionate..... from HMRCs point of view, we were easy pickings..... I genuinely don't anticipate they expected this fight.

Not withstanding the basic argument about sitting on ones posterior for so long.... and that in itself being disproportionate....

The question may become... yes they idled too long in common sense terms... but faced with the facts of how blatantly artificial the scheme is.... they acted proportionally even it it was late....

that for me is the nightmare scenario....

However, it still leaves the other channels open to address it later i.e. supreme courts to nail the subjective points...

but would have been nice to go in 'love forty' to the next round.... it helps, if nothing else physiologically

[DonkeyRhubarb]

DR, as a wild guess I assume it could be an assessment of how much of the population are affected and to what extent. However that then opens the floodgates to lots of changes impacting a small set of people which when combined equate to a large number therefore sidestepping that kind of protection...who knows...

ECHR protects the rights of the individual.

If that wasn't the case then Governments could get away with torturing people as long as they didn't do it to too many.

It doesn't matter how many people are affected by a retrospective tax law. It is the impact on the individual which has to be within the margin of appreciation.

[DonkeyRhubarb]

The question may become... yes they idled too long in common sense terms... but faced with the facts of how blatantly artificial the scheme is.... they acted proportionally even it it was late....

SL,

That argument cuts both ways. If it was so blatantly artificial why wait 7 years to put a stop to it? Surely that would be a reason for acting even more quickly and decisively?

If this does eventually go against them, then it will be the shear length of the retrospection that will be their downfall.

[Freelancer]

case now being reported in the Isle of Man

Concern as tax loophole is closed
Published online at 05/11/2010 07:03:41

A unique test case in the London appeal court could create a tax precedent.
IT consultant Robert Huitson was one of scores of people who followed specialist tax advice and set up Isle of Man trusts to avoid British income tax.
He’s now facing a £100,000 backdated tax bill and is accusing UK Revenue and Customs of violating his human rights.
The scheme was entirely legal and ran for seven years until Parliament closed the loophole retrospectively and issued backdated demands for millions of pounds.
Isle of Man tax expert Phillip Dearden (from PKF) says the implications could be serious:
Listen To Related Audio Clip
http://www.manxradio.com/oNews/uploa...mber044314.wma

[Squicker]

Concern as tax loophole is closed
Published online at 05/11/2010 07:03:41

A unique test case in the London appeal court could create a tax precedent.
IT consultant Robert Huitson was one of scores of people who followed specialist tax advice and set up Isle of Man trusts to avoid British income tax.
He’s now facing a £100,000 backdated tax bill and is accusing UK Revenue and Customs of violating his human rights.
The scheme was entirely legal and ran for seven years until Parliament closed the loophole retrospectively and issued backdated demands for millions of pounds.
Isle of Man tax expert Phillip Dearden (from PKF) says the implications could be serious:
Listen To Related Audio Clip
http://www.manxradio.com/oNews/uploa...mber044314.wma

There was a saying, "only two things in life are certain; death and taxes".

Taxation doesn't seem such a certainty anymore, does it?

[PlaneSailing]

Hmmmm

My contact said that Singh's performance today was very shaky.

Once again, Singh resorted to reading out posts off this forum.

LJ Mummery commented that they couldn't know who these people are or if they even exist. After conferring with HMRC, Singh said they know who we all are. Fortunately, the Judge was having none of this and dismissed it.

Apparently, Elvin gave an excellent closing statement, as did the QC representing PwC.

Overall, it was a very good day and the hearing ended on a high note for us.

There is a code of conduct for barristers to follow, governed by the Bar Standards Board.

A snippet:

e) must not adduce evidence obtained otherwise than from or through the client or devise facts which will assist in advancing the lay client's case;
(f) must not make a submission which he does not consider to be properly arguable;
(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;

Part VII - Conduct of Work by Practising Barristers

[silver_lining]

..That argument cuts both ways. .

Absolutely, I just hope we made that crystal.

[SantaClaus]

There is a code of conduct for barristers to follow, governed by the Bar Standards Board.

A snippet:

e) must not adduce evidence obtained otherwise than from or through the client or devise facts which will assist in advancing the lay client's case;
(f) must not make a submission which he does not consider to be properly arguable;
(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;

Part VII - Conduct of Work by Practising Barristers

Lets see the court transcripts to verify what was actually said.

This link might help when making a complaint:

Information on making a complaint

This excerpt from their leaflet looks interesting too:

What is professional misconduct?
Professional misconduct is when a barrister has breached the Code of Conduct for barristers.
You can find out more about the Code on our website: www.barstandardsboard.org.uk
Examples of professional misconduct include:
- misleading the court
- failing to keep information confidential
- acting dishonestly or in a way that damages the profession’s reputation
discriminating against you because of your race, religion, sex, sexuality, disability or age

[centurian]

HMRC may know who I am but it is disturbing that they claim to know the identity of other forum users.

Presumably to do this, they would have to get a "Norwich Pharmacal Order" against CUK and then subsequent orders against each and every ISP - or do HMRC have special powers which means that don't need a Norwich Pharmacal Order - they can just get whatever they want.

If they did use a NPO, then that would be an irony, since such an order effectively became precedent when Norwich Pharmacal sued HM Customs & Excise - and won.

Norwich Pharmacal Co. v Customs and Excise Commissioners - Wikipedia, the free encyclopedia

More likely, they're guessing at who the people are...