BN66 - Round 2 (Court of Appeal)

[Toocan]

Could it be they are looking for some middle ground ?

Perhaps where the moralistic view on tax avoidance is appeased without opening the floodgates for retrospection. Say they decided it didn't infringe our human rights to apply tax retrospectively for a year then Hmrc gets some money and doesn't lose so much face and everyones right to organise tax affairs with (a relative amount of) certainty is upheld ?

I don't think the Court can do that as that would be re-writing what Parliament had enacted.

Parliament have told the Courts that if Parliament ever pass legislation which goes against Human Rights (as per the UK Human Rights Act) then the Court can declare that legislation to be incompatible. In effect, Parliament have bound themselves to respect human rights.

This gives the Courts the power to (effectivley) strike out the smallest amount of legislation (words) in order to bring the legislation back in line with the UK Human Rights Act.

The Court can therefore (effectively) strike out the words "always have had effect" but cannot insert new words.

[LisaContractorUmbrella]

I don't think the Court can do that as that would be re-writing what Parliament had enacted.

Parliament have told the Courts that if Parliament ever pass legislation which goes against Human Rights (as per the UK Human Rights Act) then the Court can declare that legislation to be incompatible. In effect, Parliament have bound themselves to respect human rights.

This gives the Courts the power to (effectivley) strike out the smallest amount of legislation (words) in order to bring the legislation back in line with the UK Human Rights Act.

The Court can therefore (effectively) strike out the words "always have had effect" but cannot insert new words.

I thought it was the case that the collectors of taxes in the member states did not fall under the scope of the human rights act? If they are bound by it which section applies in this case Toocan?

[DonkeyRhubarb]

I thought it was the case that the collectors of taxes in the member states did not fall under the scope of the human rights act? If they are bound by it which section applies in this case Toocan?

I'm sure that's HMRC would like to think.

The HRA does apply to taxation but authorities have a wide margin of appreciation in this area, which makes it very difficult to challenge anything on the basis of HR.

This is why we face such an uphill battle trying to argue that BN66 is in breach of article 1 protocol 1.

[LisaContractorUmbrella]

I'm sure that's HMRC would like to think.

The HRA does apply to taxation but authorities have a wide margin of appreciation in this area, which makes it very difficult to challenge anything on the basis of HR.

This is why we face such an uphill battle trying to argue that BN66 is in breach of article 1 protocol 1.

That sounds about right I would have thought article 7 would have been appropriate in this case as well

[portseven]

Anyone catch this show - BBC iPlayer - Decision Time: 08/06/2011 - last night? Radio4's Decision time on Tax Avoidance.

[SantaClaus]

I maybe massively deluded but I cant help feeling that the longer the decision takes the more encouraged I am that its going to fall our way....thoughts anyone??

Call me cynical, but I think the longer the decision takes, the more time the judges are spending on the golf course

[smalldog]

Anyone catch this show - BBC iPlayer - Decision Time: 08/06/2011 - last night? Radio4's Decision time on Tax Avoidance.

No, I didnt what was the meat of the discussion??

[DonkeyRhubarb]

It's probably taking a lot longer than normal because this is not a normal situation.

The judges are having to decide two completely different cases at the same time. The only things in common is the scheme and the legislation. Other than that, these are two totally distinct areas of the law; one involves the Human Rights Act and the other the European Treaty (PwC).

To further complicate matters, the PwC case hadn't previously been heard in court so strictly speaking it's not even an appeal. The judges are having to consider this one from scratch.

We have no idea if both cases are taking a long time to reach a decision, or if one was despatched fairly quickly.

[TheBarCapBoyz]

It's probably taking a lot longer than normal because this is not a normal situation.

The judges are having to decide two completely different cases at the same time. The only things in common is the scheme and the legislation. Other than that, these are two totally distinct areas of the law; one involves the Human Rights Act and the other the European Treaty (PwC).

To further complicate matters, the PwC case hadn't previously been heard in court so strictly speaking it's not even an appeal. The judges are having to consider this one from scratch.

We have no idea if both cases are taking a long time to reach a decision, or if one was despatched fairly quickly.

In other words, they shouldn't have heard both cases at the same time.

[DonkeyRhubarb]

In other words, they shouldn't have heard both cases at the same time.

The judges were clearly affronted at having to hear the PwC case, which hadn't been through the lower courts, and vented their frustration on PwC's barrister. The reality is though it was their fellow judges in the CoA who had approved the application.

I hope their annoyance isn't contributing to the delay.