BN66 - Round 2 (Court of Appeal)

[DonkeyRhubarb]

Does anyone know if inability to pay, i.e, impending bankruptcy, would be grounds for an appeal against a CN?

I would guess not.

Doubt it.

BUT

This would be grounds for preventing them from enforcing collection while further appeals were being mounted.

HM Revenue & Customs: Enforcement of judgements in litigation

HMRC will not enforce payment in cases where to do so would be likely to drive the taxpayer into liquidation or bankruptcy.

[Morlock]

...the judgement will set case law so HMRC wont need and the individual wont be entitled to, a day or 3 in court.

It depends on the precedent that's established. HMRC have apparently argued that retrospection is proportionate in this case because Huitson was warned that the scheme was dodgy. Therefore this as "case law" couldn't apply to someone who received no warning.

[DonkeyRhubarb]

Appeals of Closure Notices

There seems to be a lot of confusion about this.

Let's be absolutely clear, HMRC winning the Huitson case does NOT automatically enable them to issue us with final demands.

Firstly, they would still need to go through the formal process of discharging our individual CN appeals, which have got nothing to do with Robert Huitson's JR.

Secondly, and most importantly, the Human Rights argument was not the only grounds Montpelier cited in our appeals.

HMRC would need to take test cases forward to Tribunal to test the other grounds of appeal.

If you are going to disagree with what I've stated above, please can you do so on the basis of fact not speculation.

[johnnyguitar]

"Secondly, and most importantly, the Human Rights argument was not the only grounds Montpelier cited in our appeals."

- this bit was news to me - maybe I wasn't paying attention that day
ae we allowed to know what the other grounds for appeal were ?

[DonkeyRhubarb]

"Secondly, and most importantly, the Human Rights argument was not the only grounds Montpelier cited in our appeals."

- this bit was news to me - maybe I wasn't paying attention that day
ae we allowed to know what the other grounds for appeal were ?

Yes indeed. And this is a crucial point which makes all the speculation over recent days completely and utterly wrong.

I suspect most people haven't seen what was submitted on their appeal applications.

I'm not giving anything away here because HMRC have obviously seen this.

(Note, there was a special wording for people who received Discovery Notices after the Jan 31 time limit had expired. Montpelier dispute the validity of these entirely, and HMRC have never responded to this.)

However, for the vast majority of CNs, this is what was stated as grounds for appeal:

We appeal on the grounds that we are of the opinion that the distributions from the Isle of Man Settlement are exempt from UK tax by virtue of Article 3(2) of the United Kingdom – Isle of Man Double Tax Agreement.

We do not consider the distributions to be partnership profits under s858 ITTOIA 2005 (as amended by s58 Finance Act 2008).

We further contend that s58(4)(5), Finance Act 2008, are contrary to the UK Human Rights Act under the First Protocol and Article 14.

The bottom line is...

even if HMRC win the Huitson appeal (UK HRA), test cases will still have to go to Tax Tribunal to consider the other grounds of appeal.

[RingStinger]

DR

I haven't seen the appeal wording for my CN's, so had no idea of that. I assumed the CN's were only being appealed on Human Rights grounds. And Montpeliers communications have implied this too. Unless I haven't been paying close enough attention either .....

So thanks for highlighting what you have.....

[DonkeyRhubarb]

DR

I haven't seen the appeal wording for my CN's, so had no idea of that. I assumed the CN's were only being appealed on Human Rights grounds. And Montpeliers communications have implied this too. Unless I haven't been paying close enough attention either .....

So thanks for highlighting what you have.....

I think the confusion arises because people associate the appeals of the CNs with Huitson's JR, when in fact there is no direct connection.

Just like there isn't any connection between our appeals and Shiner (the PwC claimant) or whoever Steed has named on their ECtHR application.

The only reason our appeals haven't proceeded through the Tax Courts already is because HMRC have parked them while the JR is in progress. There is a technical reason for this in our case because a Tax Tribunal cannot consider alleged breaches of Human Rights.

This is why the CoA were so hostile to the PwC case because technically this should have started in the Tax Courts not the higher courts. A Tribunal can consider matters relating to the European Treaty, which is the basis of PwC's argument.

In fact, at an earlier hearing HMRC petitioned the court to dismiss PwC's case and force them to take it to a Tribunal.

Anyway I digress.

The important point is that if the judgment goes against us then it does NOT mean that HMRC can issue immediate demands or send in the bailiffs, as some scaremongers have suggested.

[moira under the stairs]

I think the confusion arises because people associate the appeals of the CNs with Huitson's JR, when in fact there is no direct connection.

Just like there isn't any connection between our appeals and Shiner (the PwC claimant) or whoever Steed has named on their ECtHR application.

The only reason our appeals haven't proceeded through the Tax Courts already is because HMRC have parked them while the JR is in progress. There is a technical reason for this in our case because a Tax Tribunal cannot consider alleged breaches of Human Rights.

This is why the CoA were so hostile to the PwC case because technically this should have started in the Tax Courts not the higher courts. A Tribunal can consider matters relating to the European Treaty, which is the basis of PwC's argument.

In fact, at an earlier hearing HMRC petitioned the court to dismiss PwC's case and force them to take it to a Tribunal.

Anyway I digress.

The important point is that if the judgment goes against us then it does NOT mean that HMRC can issue immediate demands or send in the bailiffs, as some scaremongers have suggested.

Refering to Tax_shouldnt_be_taxing post 2783... your pretty damn close there matey

[Tax_shouldnt_be_taxing]

Two types of MP

When you consider that the then Opposition were pretty much all against the retro angle of BN66 and how now as they are in Government they appear to have no inclination to stand by their original convictions, then that is one form of MP that HAS flipped. Also when you consider that HMRC were going to take the test cases ot the Commissioners and asked us to abide by that outcome, they flipped. In fact it occurs to me that everyone EXCEPT our MP has flipped at some point in all of this.

Whilst it's easy and right to be critical of HMRC and MP's on how they say one thing and then do another, is it not the case that thus far MP have been good to their word? Frankly, beating up on them is in my opinion a poor reflection on us. So they're getting out of the old tax planning ground that they were involved with. Does that mean we should start attacking them with claims of possible abandonment? Too many are too quick to jump the gun. Of course this is all very stressful for everyone and latitude can be given in such circumstances but...

As DR points out (quite rightly) this is not just a done deal. So let's wait for the CoA ruling and what MP plan next. I think we should retain our firepower for those deserving of it rather than direct it at MP just because they're changing their business direction.

With some of the comments about MP here, I'd be thinking twice about taking it forward if I were them. Give them a break and stop the impending doom tales and having a go at MP. If you have a reason for it ultimately then save it until there's a time when it's warranted.

As I said at the start, MP is the only MP that hasn't flipped their position on this and they're putting good money into it too. Rather than speculate on what might happen in the future, let's focus on understanding the facts as they stand and worry (if needed) about the what if's as and (or) when they become facts.

[DonkeyRhubarb]

Refering to Tax_shouldnt_be_taxing post 2783... your pretty damn close there matey

Perhaps I should have made it clear, I'm not expressing a personal opinion.

I'm relaying the advice I've received from various people, who understand the process, to counteract some of the blatant scaremongering in recent days.

And by the way, I have just been reminded that I missed something.

Montpelier didn't just appeal our CNs.

They also formally requested postponement of payment, pending these appeals, which HMRC accepted.