BN66 - Round 2 (Court of Appeal)

[smalldog]

First of all, I just want to say that I think this forum is a great resource of value, and I think that in time this will be shown to be the case. The reason is there are (in the main) people publicising factual content, which by and large usually forms the basis of legal argument, and ultimately you have to have faith that this will win out. DR (and others) - keep up the great work.

I have added nothing since my initial post, as I have nothing factual to add to your case (although some of the messages i received have been "interesting"). I do however have this observation on interest payments, which may or may not be relevant, but it would appear that HMRC have set a precedent in not charging interest on outstanding amounts in excess of £2k to some people. Whether they will now argue that this is not applicable to amounts outstanding under BN66 should they become payable is another question. As you know, the goal posts are not fixed at their end of the pitch.

BBC - BBC One Programmes - Panorama, Are You Paying Too Much Tax?
(see from 17.50 if you can't bear to watch the rest)

Johnny, I mentioned this a while back and I think it came as a shock that there were no legal obligations for HMRC to charge interest. It had always been stated before that their hands were tied and they must charge, thats obviously been proven untrue.

I for one, think there could potentially be some mileage in the courts trying to reach an agreement by brokering a deal where the money is due, but due to the retrospective nature then HMRC cant charge interest.

If that happens then HMRC win as they still get the tax (minus the interest) and we also win as we arent penalised by having our bills inflated by 50-60% from the original amount due....that could be an easy win-win for both parties without losing too much face and dragging this out longer than necessary...

of course I would rather not pay anything as I did everything properly but it may be a deal some are prepared to accept just to be rid of this nasty smell

[Johnnycomelately]

indeed. i find it particularly frustrating that HMRC appear to take a non commercial view on avoidance plans used by individuals - ie they prefer litigation over settlement. whereas the opposite appears to be true in the commercial world - eg vodafone. however, the word "commercial" needs re-classifying in that case (approx £6bn liability, reserved in VOD accounts for almost £2.5bn, settled for £1.25bn).

my guess is they could also settle 95%+ of BN66 claims at 21p in the pound should they offer such terms! but they won't, preferring instead to take the payout risks associated with a coin toss.

[elpinar]

i can see that no interest would be great if it came to that - but for those of us with 6 figures of ctds I would be a tad annoyed, as I could have got interest on that money for the last 2 or 3 years and had something to reduce my bill rather than it sitting earning nothing in the treasury coffers - so its win-win to a point but will penalise seom of us

[ContractIn]

i can see that no interest would be great if it came to that - but for those of us with 6 figures of ctds I would be a tad annoyed, as I could have got interest on that money for the last 2 or 3 years and had something to reduce my bill rather than it sitting earning nothing in the treasury coffers - so its win-win to a point but will penalise seom of us

I'm partially in same boat as I only have about 75% covered in a CTD, the rest they can swivel for. However, if they decided to drop the interest charges I would be happy to accept this and just move on from this awful mess and not look back! Would this not set precedent tho?

[smalldog]

I'm partially in same boat as I only have about 75% covered in a CTD, the rest they can swivel for. However, if they decided to drop the interest charges I would be happy to accept this and just move on from this awful mess and not look back! Would this not set precedent tho?

what u mean like vodafones settlement??

[swede]

I'm partially in same boat as I only have about 75% covered in a CTD, the rest they can swivel for. However, if they decided to drop the interest charges I would be happy to accept this and just move on from this awful mess and not look back! Would this not set precedent tho?

Nah they can swivel, period. Paying no interest on something I didn't owe in the first place is hardly generous!

[SantaClaus]

Well, HMRC can kiss my tuchus.

[DonkeyRhubarb]

Treasury memorandum to JCHR regarding Finance Bill 2010

Not sure if anyone has seen this previously.

http://www.parliament.uk/deposits/de...P2010-1004.pdf

The section on 'Unannounced' retrospective measures is most relevant.

The Bill contained a measure, announced on 9th Feb 2010, which was retrospective back to 1st Oct 2007 (approx 2.5 years).

I bet it wasn't a coincidence that this announcement came just after the HC had ruled in our case.

I also wonder if this memo was partly intended as a coded message to the Committee, and possibly the Courts, to think carefully before interfering.

[deckster]

Not sure if anyone has seen this previously.

http://www.parliament.uk/deposits/de...P2010-1004.pdf

The section on 'Unannounced' retrospective measures is most relevant.

The Bill contained a measure, announced on 9th Feb 2010, which was retrospective back to 1st Oct 2007 (approx 2.5 years).

I bet it wasn't a coincidence that this announcement came just after the HC had ruled in our case.

I also wonder if this memo was partly intended as a coded message to the Committee, and possibly the Courts, to think carefully before interfering.

Thanks - very interesting and nice to see those old familiar words 'this clause will restore certainty' (ie we ballsed it up first time round). Also it entirely bears out our prediction that, if HMRC win, the floodgates will open and 'unannounced restrospection' will become a routine part of tax legislation. You can't close Pandora's box once it's been opened

[Tax_shouldnt_be_taxing]

Not sure if anyone has seen this previously.

http://www.parliament.uk/deposits/de...P2010-1004.pdf

The section on 'Unannounced' retrospective measures is most relevant.

The Bill contained a measure, announced on 9th Feb 2010, which was retrospective back to 1st Oct 2007 (approx 2.5 years).

I bet it wasn't a coincidence that this announcement came just after the HC had ruled in our case.

I also wonder if this memo was partly intended as a coded message to the Committee, and possibly the Courts, to think carefully before interfering.

Does sound like it DR. But also, there is the usual sticking plaster reference to A1P1 and wide margin of appreciation to Parliament when framing legislation etc.. But in point 4 it goes on to reference fairness and I think this come back to the old chestnut in our case - legal certainty. When retro is employed because of actions that could not have been anticipated by Parliament or because they were unaware is one thing. But, and here I go again, HMRC knew everything for 6 years and then bemoned the risk to the Exchequer as a reason for retro. Nothing about planned test cases via litigation or knowing the full extent of what the scheme did for 6 years.

So there is text in this that should support our case if these rather important points are considered. Points 4 and 5 discuss this and the text prior to point 4. Whether it's there as a sticking plaster or not who knows.

But for all the ramblings on retro being fair and proportionate, there seems nothing that explains how so when the State sat on its hands for just enough years to apply retro to claim against 6 years Returns on the basis of a law that they claim was a warning yet the outcome is different and oddly never came up once before it was announced in BN66. So much for the text claiming to honour the Rees Rules.

But it does appear that retro is the new proact. Let's hope some of the pertinent points are part of the CoA ruling as they DO separate our position from the fluff descibed in linked document.

I've a mind to write to Mr Dismore (MP) and ask how the text defines the above and the rest of the atrocious inactions that led to BN66.