BN66 - Round 2 (Court of Appeal)

[reckless]

I agree that we should stop all this negativity. Remember that 'the darkest hour is before the dawn!' We certainly don't want to give the HMRC spys ammunition for their ongoing persecution of the innocent.

We have right on our side and I have seen nothing in the recent COA references that could be conceived as diminishing our chances of victory. Also, MP have to date honoured all their original promises, so I have confidence that they will stand firm.

Until the COA decision is handed down, all the supposition is a waste of time and in some instances a drag on morale.

So meantime, I say, 'hold steady in the front rank!'

[ContractIn]

Couldn't agree more. Was about to post a similar comment, then cam across yours.

We have right on our side, we just need to stay organised, positive and focussed.

I would agree, however putting another point across I am not so sure we would get 3000 supporters. Look how many people participated in letters to MP's, FOI requests, and the polls on this forum. Realistically I think we are looking at 200 tops.

Personally, I have a plan (probably not a popular one at the moment) but until the judgement is announced there is no point speculating any further.

[Emigre]

Why the negativity?

I've just read 50 odd posts on here, some hopeful, others far less so. MP agreed a number of months ago to keep us informed about progress and events. Their letter does that. Maybe they presented it with their own spin on it, maybe not. They are continuing to delivere on that commitment.

In their letter they committed to continuing to fight our corner. When they made those initial commitments back in 2002, and after, I doubt whether anyone would realistically have believed that we'd be fighting on the legal grounds that we are now fighting. All the evidence points to the scheme working. Regardless of that, MP are still doing what they said they would do, they are supporting us.

So why all the negativity? They sent us a letter telling us they were staying involved. They have only ever done what they said they would do.

There is nothing different now to many of the other times when we have been waiting to hear the opinions of the judiciary on the set of circumstances placed before them. Be patient. The LJs will consider our case and report back to us when they are ready.

There are four possible outcomes at a simple level - unanimous decision for or against and majority decision for or against. The significant point will be content of the decisions and the reasons for each LJ to reach their individual decision (res judicata). In addition, the LJs will undoubtedly make comment on matters outside the areas that determine their decision (obiter dicta).

Comments in any of this areas could have an influence one way or another on where this goes next. They may wish to criticise HMRC for the length of time they sat on their hands which may open up opportunity in the right quarters for a formal complaint. They could conclude that the 4 test cases are still open and that this case should therefore not be in Court pending outcome of those cases. I could go on.

The point here is that until the decision has been handed down by the CoA there is no certainty about anything, and even then it will probably just be another step along the very long road that both sides seem to be prepared and committed to go.

We did nothing wrong; we have the moral high ground. Remember that. We told them exactly what we did in a fully transparent and timely fashion. HMRC did nothing with it except obtain Counsel opinion after Counsel opinion at the taxpayers expense which they have refused to present to the Court. We know the scheme worked and they haven't managed to prove otherwise at any step along the way.

HMRC lied to Govt to cover up their own failings and to bring S58 FA2008 onto the Statute books. By so doing they have willfully and deliberately deprived us of our day in the Tax Courts. In short they have deprived us of natural justice.

We should not get hung up about the fact that MP were dismissive of the Shiner case; MP elected not to pursue that line at round 1; they probably haven't changed their view. We should be grateful that the Courts have accepted a Hearing on the Shiner lines in the first place since it gives us greater opportunity to win. Further there are still initiatives moving forward (at a snail's pace) direct in Europe.

Were the LJs to make a decision in favour of HMRC when they hand it down, there are still many avenues open to us to challenge both that Judgement and other matters. Keep the faith, and enjoy the weekend and Christmas for that matter.

Emigre

[smalldog]

Emigre, I couldnt agree more.....!!

If we do win then I think we should all pop down to Miss Miggins pie shop for a slap up lunch

[Toocan]

As for what we were told at the scheme presentation, well, I attended one in Liverpool by W Gittins no less and I can remember what I was told. At the time I thought the statement that the then IR 'only had 12 months' to investigate \ consider the returns' which, would be submitted as near the filing deadline as possible, to be not quite correct.

That is correct. After the last filling date of 31 Jan following the end of the tax year HMRC have 12 months to open an investigation into your tax return. (that has changed slightly these days). If they do not do so then the return is closed. The exception to this is in the case of fraud which does not apply here.

Many scheme members who were in the first year of the scheme did not have an investigation opened until after that date and if push comes to shove, HMRC will not be able to collect "tax" from those closed returned. They are chancing their arm right now.

The advice offered by Montpelier has been correct.

Keep in mind that the scheme DID work. Parker did not test this fact and even went as far as to suggest that the Ramsey principle could be applied in the opposite way to how it has been used for the last hundred years. If the scheme did not work then Judge Parker could (and would) have easily justified his opinion on that. He didn't.

The question before the CoA is not whether the scheme worked, but whether it was lawful for Parliament to retrospectively legislate against a scheme that they had tolerated for so long. Keep that in mind when reading the prophets of doom on here.

Also, this hearing and indeed the JR is not the end of the road. HMRC cannot call on you for cash the instant the CoA returns its judgement. Every CN has been appealed and those appeals are suspended pending the outcome of the JR. They will still have to go through the appeal process even once the JR is over. That could potentially means a tax tribunal for every single of the 3,000+ scheme users. Every person's case has elements that make them different.

I don't know how the CoA will find. Given that the scheme was lawful - and even HMRC has admitted that they believed it was even when they were promising to take cases to the commissionaires - it would be very unjust for HMRC to get away with (in effect) introducing a retrospective tax going back so long.

Keep saving; keep positive...

[BolshieBastard]

Isn't it the case that everyone's SA's have been appealed by Montp? Even if we lose the CoA, those appeals are still pending. As someone pointed out, this case is against Mr Huitson only.

Look, Im sorry to say I dont know why people are clinging to this notion that HMRC are only taking Huitson through the courts. Ergo, if they win, everyone else has a 'right' to go to court.

Sorry, but that's not the case. Huitson and the judgement on our part of the case will set case law and a basis for HMRC to determine the tax appeals on the rest of the scheme users. Dont confuse tax appeal with Court of Appeal. Its separate actions.

Once HMRC have a decision in law backed by the High Court, Court of appeal and the Supreme Court if it gets that far, the framework is set for them to determine the actual tax appeals.

Its ok some people going on about 'armchair lawyers' but it really isnt hard to find methodology on the net

Obviously, the chances of winning an appeal recede considerably if the CoA is lost and no appeal is lodged to go to the Supreme Court, but HMRC can't just issue demands for payment even if they wanted to.

Correct, HMRC would first have to deal with the appeals. These will likely be fast tracked but, with the weight of at least two of the UK's law courts behind them, its pretty clear which way the appeals will fall.

In the longer term, I guess it depends on what Monp decide to do. If they take the case to the Supreme Court and/or Europe, we go on to round three...

Yes we do. The question remains how much money are Mont P willing or able to spend in taking this action.

[BolshieBastard]

That is correct. After the last filling date of 31 Jan following the end of the tax year HMRC have 12 months to open an investigation into your tax return. (that has changed slightly these days). If they do not do so then the return is closed. The exception to this is in the case of fraud which does not apply here.

Many scheme members who were in the first year of the scheme did not have an investigation opened until after that date and if push comes to shove, HMRC will not be able to collect "tax" from those closed returned. They are chancing their arm right now.

If that were the case, Im more than surprised mont P havent included this obvious fact in their case.

The advice offered by Montpelier has been correct.

Keep in mind that the scheme DID work. Parker did not test this fact and even went as far as to suggest that the Ramsey principle could be applied in the opposite way to how it has been used for the last hundred years. If the scheme did not work then Judge Parker could (and would) have easily justified his opinion on that. He didn't.

The question before the CoA is not whether the scheme worked, but whether it was lawful for Parliament to retrospectively legislate against a scheme that they had tolerated for so long. Keep that in mind when reading the prophets of doom on here.

Frankly, I find your last sentence very insulting. Prophet of Doom? Maybe some like you want to see those of us who actual have a different opinion labeled as such. Im certain we all agree the scheme worked. The point is, the law courts arent backing us up on this.

Also, this hearing and indeed the JR is not the end of the road. HMRC cannot call on you for cash the instant the CoA returns its judgement. Every CN has been appealed and those appeals are suspended pending the outcome of the JR. They will still have to go through the appeal process even once the JR is over. That could potentially means a tax tribunal for every single of the 3,000+ scheme users. Every person's case has elements that make them different.

Im sorry but this is giving people false information to an extent. its true every appealed return will go through the process. But, these will be fast tracked and determined based on the decisions passed down by the 3 law courts assuming it gets to the Supreme Court.

Do not expect 3000+ appeal tribunal hearings taking a day each. I'll tell you how it works

Presenting officer will lay the facts before the tribunal \ commissioners. PO will recite exemption from tax is based on the DTA between IoM and UK which has been deemed not to work by the HC, CoA and SC. There is therefore clear and unequivical legal decision the scheme did not work. The PO will state HMRC asks for the appeal to be dismissed.

The PO will then present a list of other appellants who also claimed under DTA and the same legal decision applies and moves that HMRC asks for the appeals to be dismissed.

I don't know how the CoA will find. Given that the scheme was lawful - and even HMRC has admitted that they believed it was even when they were promising to take cases to the commissionaires - it would be very unjust for HMRC to get away with (in effect) introducing a retrospective tax going back so long.

Keep saving; keep positive...

I dont know how CoA will go. I hope to goodness we win cos it means I get to keep my money and others arent made bankrupt.

[SantaClaus]

Thank you Emigre and Toocan for a bit of clarity in a sea of needless panic!

[SantaClaus]

...
Also, this hearing and indeed the JR is not the end of the road. HMRC cannot call on you for cash the instant the CoA returns its judgement. Every CN has been appealed and those appeals are suspended pending the outcome of the JR. They will still have to go through the appeal process even once the JR is over. That could potentially means a tax tribunal for every single of the 3,000+ scheme users. Every person's case has elements that make them different.
..

Thank you for Toocan, you put that a lot more eloquently than I could.

...
Do not expect 3000+ appeal tribunal hearings taking a day each. I'll tell you how it works

Presenting officer will lay the facts before the tribunal \ commissioners. PO will recite exemption from tax is based on the DTA between IoM and UK which has been deemed not to work by the HC, CoA and SC. There is therefore clear and unequivical legal decision the scheme did not work. The PO will state HMRC asks for the appeal to be dismissed.

The PO will then present a list of other appellants who also claimed under DTA and the same legal decision applies and moves that HMRC asks for the appeals to be dismissed..

OK, just read above. Do you have any reference material/sources that back up this statement?
As a personal example, my closure notices have figures scribbled in pencil and despite HMRC claiming otherwise, there was one that I didn't receive in the prescribed time limit. Therefore I think I have a right to appeal against them.

As Toocan said, each person's case has elements that make them different. No doubt everyone will have subtleties in their case where HMRC have not followed "procedure". I still think we can block up the courts system.

Right, I'm off to sit in my favourite armchair

[Toocan]

If that were the case, Im more than surprised mont P havent included this obvious fact in their case.

...that is my point - that's not what the judicial review is about.

On the specific point, there has been other posts that will lead you to the information. For example http://forums.contractoruk.com/accou...timelines.html

(Note there are links on that page to HMRC's site)

Share as many theories as you like, but remember - none of us knows how this turns out. Let's not worry ourselves to death just yet.