BN66 - Round 2 (Court of Appeal)

[DonkeyRhubarb]

The Inland Revenue has not made retrospective tax changes since the 1960s. It has been advised in the past that retrospective taxation could be challenged in the European Court of Human Rights.

I'm sure their Counsel would have advised them that BN66 could be challenged but they just went ahead anyway.

I bet they shrewdly calculated that once it was approved by Parliament, it would be very difficult to get it reversed.

By the way, and not that you probably want reminding of this, it will be the 3-year anniversary of BN66 this week (12th March 2008). That's a big chunk out of people's lives and there's still no end in sight.

Even if we eventually win, many people will have already paid a heavy price.

[Toocan]

This is a load of crap. I suspect what they are referring to is Dawn Primorola's statement in 2004.

War on tax avoidance will bring in £1bn a year | Business | The Guardian

"I am therefore giving notice of our intention to deal with any arrangements that emerge in future designed to frustrate our intention that employers and employees should pay the proper amount of tax and NICs on the rewards of employment. Where we become aware of arrangements which attempt to frustrate this intention we will introduce legislation to close them down, where necessary from today."

This only applied to employees and was NOT a law.

In addition to what has been said on this before - what exactly is the "proper amount of tax"?

Tax is levied by statute and, as such, the "proper amount of tax" is the amount dictated by the wording of the statute (law).

This is how our legal system works. It has worked this way for a very long time.

The then paymaster general's statement was meaningless and worthless.

[Tax_shouldnt_be_taxing]

I'm sure their Counsel would have advised them that BN66 could be challenged but they just went ahead anyway.

I bet they shrewdly calculated that once it was approved by Parliament, it would be very difficult to get it reversed.

By the way, and not that you probably want reminding of this, it will be the 3-year anniversary of BN66 this week (12th March 2008). That's a big chunk out of people's lives and there's still no end in sight.

Even if we eventually win, many people will have already paid a heavy price.

An interesting slant on BN66 at this anniversary. I do recall extracts from Hansard where Timms stated that one primary reason to legislate rather than litigate was that the latter would be a protracted and expensive route. Well, I'm not one for keeping tallies as such but 3 years and counting of legislation does not appear to me to be any different. Not least given that they probably knew the legislation would be challenged.

So we have the case for BN66 as being (from Hansard):

Litigation would be time consuming and costly
The risk to the Exchequer
Unacceptable Tax Avoidance
Padmore was already retrospective

And the rebuttle of these claims:
We are in litigation which is time consuming and costly
The risk existed for 8 years and with full knowledge to HMRC
Legal and transparent tax planning as defined by the Secretary-General of the OECD
Padmore didn't apply any retrospective tax or penalties and the then IR made it clear that the carve out of Padmore was explicitly to achieve that point.

So they dressed up BN66 for Parliament, sold it with a song and as you say, got it on the Statute knowing it would be a tough call for the Judiciary to overturn it.

And as Toocan rightly says, we're dealing with Statute (written law) here so I'm yet to understand how that works in terms of "unacceptable", "artificial", "public policy" and all the other non-legal characterisations of obeying the law that the law makers later choose to find issue with.

The CoA website describes its function as upholding the law. I presume from that they refer to Statute. At least this argument has yet to be ruled on. And in the meantime, some 3000 people have their lives on hold. 3 years is more than a jail term for something that IS illegal. Perhaps compensation for illegally impeding our lives, akin to false imprisonment.

[Tax_shouldnt_be_taxing]

CoA Ruling

BTW, I don't think the CoA result when it comes is that key. Win or lose, it will end up at the SC. It's just too big an issue to rest at a lower court - no disrespect to the CoA. The wording of the ruling will be more important for me as it will indicate what the Judiciary is thinking. If we win, great. If we lose, so what? The wording will give an insight into our chances and then we'll have the long wait for the SC. I don't know when that will happen but if you look at the timelines, a ruling from the SC might come before December 2012 at best.

What Parker said beggars belief. What the LC's say will either support or refute that position to some greater or lesser degree. So whilst a loss at the CoA is not something to ignore, it's what they say that counts for me. In any event, it's the SC where all this will end up.

The one glimmer of hope in all of this is that right or wrong, Parliament is at odds with the Judiciary on Statute (not least where HR is concerned).

So win or lose at the CoA, it's what the ruling says that counts since that will carry forward to the SC more than the ruling itself.

[DonkeyRhubarb]

BTW, I don't think the CoA result when it comes is that key. Win or lose, it will end up at the SC. It's just too big an issue to rest at a lower court - no disrespect to the CoA. The wording of the ruling will be more important for me as it will indicate what the Judiciary is thinking. If we win, great. If we lose, so what? The wording will give an insight into our chances and then we'll have the long wait for the SC. I don't know when that will happen but if you look at the timelines, a ruling from the SC might come before December 2012 at best.

What Parker said beggars belief. What the LC's say will either support or refute that position to some greater or lesser degree. So whilst a loss at the CoA is not something to ignore, it's what they say that counts for me. In any event, it's the SC where all this will end up.

The one glimmer of hope in all of this is that right or wrong, Parliament is at odds with the Judiciary on Statute (not least where HR is concerned).

So win or lose at the CoA, it's what the ruling says that counts since that will carry forward to the SC more than the ruling itself.

100% agree with everything you've said.

Your guestimate of Dec 2012 is probably not far off. It takes about a year from applying to the SC to get a hearing, and then another 3 or 4 months to get a judgment.

[Emigre]

Patience

Patience serves as a protection against wrongs as clothes do against cold. For if you put on more clothes as the cold increases, it will have no power to hurt you. So in like manner you must grow in patience when you meet with great wrongs, and they will then be powerless to vex your mind.

Leonardo da Vinci

[TheBarCapBoyz]

100% agree with everything you've said.

Your guestimate of Dec 2012 is probably not far off. It takes about a year from applying to the SC to get a hearing, and then another 3 or 4 months to get a judgment.

Should the case go to Europe, will HMRC still agree not to enforce collection, I wonder.

[moira under the stairs]

Should the case go to Europe, will HMRC still agree not to enforce collection, I wonder.

If they do enforce it and collect and then we go to Europe and win, that's when we should be able to cane them, if we each state that we expect a £2M compensation package if we eventually win then happy day's, but from past post's it seems that if it goes to Europe it may never get addressed in our lifetime so our dependants may become very rich when we depart this earth. but Hector also wins as they would have already collected and squandered our money .

[Emigre]

If they do enforce it and collect and then we go to Europe and win, that's when we should be able to cane them, if we each state that we expect a £2M compensation package if we eventually win then happy day's, but from past post's it seems that if it goes to Europe it may never get addressed in our lifetime so our dependants may become very rich when we depart this earth. but Hector also wins as they would have already collected and squandered our money .

Hector also wins as they would have already collected and squandered our lives

[DonkeyRhubarb]

Should the case go to Europe, will HMRC still agree not to enforce collection, I wonder.

I am pretty sure they'll continue to hold off if it goes to the UK Supreme Court.

But I am not confident they would agree to wait while we took it to Europe.