BN66 - Court of Appeal and beyond

[bve534]

IMO they had decided before the evidence was heard. They will get well rewarded.

I completely agree - they spent 6 months wasting taxpayers money when the decision had already been made that they would support the High Court verdict. As stated they formed their opinions to match the result which is why so many of them are waffle and contradictory. On the one hand they are "minded" that HMRC had a firm case to defeat the scheme and on the other they think the outcome of a case time consuming and uncertain!! It cannot be both!! The unfortunate thing is that while the judiciary should stick solely to legal issues that is the one thing they carefully tried to avoid in both the High Court and CoA summaries. Just because the economy is in crisis doesnt justify the judiciary using it as an argument to support their case!!

[DonkeyRhubarb]

It does look that way, doesn't it? The decision came first, and then the supporting arguments were reverse-engineered to fit. That's probably why they don't stand up to close analysis.

I can't get my head around this one...

"82. (...) The litigation would probably have been protracted, costly and uncertain."

In context, LJ Mummery is condoning the recourse to retrospective legislation, partly on the grounds that HMRC couldn't guarantee the success of litigation based upon the Law as`it stood.

I'm sublimely ignorant of the Theory of Law, but it feels as if something pretty fundamental is being trashed in that statement.

The problem may lie in the UK Human Rights Act itself.

Rights Act shifts balance of power to judges - Telegraph

'Giving up power is not something that ministers do lightly, but Parliament has retained its ultimate sovereignty. The Human Rights Act tells judges that "so far as it is possible to do so" they must give effect to legislation in a way that is compatible with the European Convention on Human Rights.

That should be possible in virtually all cases.'

So, it seems judges start from a presumption that legislation is compatible and then look for arguments which support this.

What makes our case even more difficult is that A1P1 is not an absolute right. States have a wide margin of appreciation in the field of taxation which makes it much easier for judges to interpret legislation in a way that is compatible no matter how draconian it is.

Do you see what we're up against?

[Disgusted of Coventry]

Do you see what we're up against?

Getting there!

Still... it's interesting to see the fragility of the Judges' arguments. It confirms, in a roundabout way, the impossibility of trying to square this legislation with their obligations to "give effect to legislation in a way that is compatible ...".

[DonkeyRhubarb]

Getting there!

Still... it's interesting to see the fragility of the Judges' arguments. It confirms, in a roundabout way, the impossibility of trying to square this legislation with their obligations to "give effect to legislation in a way that is compatible ...".

This short note from the Joint Committee on Human rights explains what we're up against.

Legislative Scrutiny: Financial Services Bill and the Pre-Budget Report - Human Rights Joint Committee

"Tax measures necessarily involve taking property from the citizen ... and therefore engage Article 1 Protocol 1. However, the second paragraph of that Article provides:

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary … to secure the payment of taxes or other contributions or penalties.

The powers of the state under this provision are recognised by the European Court of Human Rights to be very wide. They are not, however, unlimited. Taxing measures must satisfy the requirements of proportionality, but the threshold of justification to be met by the State is very much lower than in relation to other ECHR rights.

...

It is therefore clear that the hurdle facing anyone challenging a taxing measure under Article 1 Protocol 1 is very high. They must demonstrate that the measure is devoid of reasonable foundation or imposes an excessive and individual burden which is disproportionate to the public good."

[moira under the stairs]

....It is therefore clear that the hurdle facing anyone challenging a taxing measure under Article 1 Protocol 1 is very high. They must demonstrate that the measure is devoid of reasonable foundation or imposes an excessive and individual burden which is disproportionate to the public good."[/I]

Isn't retrospective changing of rules/law a '....burden which is disproportionate to the public good. ' A Fiscal year should be sufficient/ reasonable for both parties to settle disputes or close schemes down ???

[reckless]

Article 1 Tax Hurdle

...

It is therefore clear that the hurdle facing anyone challenging a taxing measure under Article 1 Protocol 1 is very high. They must demonstrate that the measure is devoid of reasonable foundation or imposes an excessive and individual burden which is disproportionate to the public good."[/I][/QUOTE]

In that case, I hope MTM's legal team will consider widening their argument to include other aspects of this sorry saga, such as HMRC's recent protocol on dealing with tax avoidance and the implementation of tax changes; the original validity of our scheme under the existing double taxation agreement; the now accepted terminology of 'retrospective' rather than 'clarification' and the admission by HMRC in their internal memo (circa 2002?) regarding the difficulty in challenging the double-taxation type schemes. I think that unless the case for the defence is broadened, then they may simply be flogging a dead horse by simply banging on about Human Rights.

[screwthis]

...

In that case, I hope MTM's legal team will consider widening their argument to include other aspects of this sorry saga, such as HMRC's recent protocol on dealing with tax avoidance and the implementation of tax changes; the original validity of our scheme under the existing double taxation agreement; the now accepted terminology of 'retrospective' rather than 'clarification' and the admission by HMRC in their internal memo (circa 2002?) regarding the difficulty in challenging the double-taxation type schemes. I think that unless the case for the defence is broadened, then they may simply be flogging a dead horse by simply banging on about Human Rights.

There has been a reoccurring theme banded about that retrospection = bad, clarification = acceptable.

If legal text requires clarification then by definition it was unclear.
So can we, professional scheme providers and tax advisers be forgiven for not fully understanding that which was not clear?

Even the clarification argument stinks.

[DonkeyRhubarb]

I think that unless the case for the defence is broadened, then they may simply be flogging a dead horse by simply banging on about Human Rights.

We are challenging a law passed by Parliament, and there are only two grounds for doing this in a court. One is Human Rights (Montpelier case) and the other is European Treaty (PwC case).

The courts have no authority to scrutinise other aspects of laws passed by Parliament.

Parliament is supreme and can pass any old laws it likes as long as they do not conflict with Human Rights and EU Treaty.

[smalldog]

We are challenging a law passed by Parliament, and there are only two grounds for doing this in a court. One is Human Rights (Montpelier case) and the other is European Treaty (PwC case).

The courts have no authority to scrutinise other aspects of laws passed by Parliament.

Parliament is supreme and can pass any old laws it likes as long as they do not conflict with Human Rights and EU Treaty.

doesnt give me any confidence the Supreme court will make any difference in that case if all we are doing is bleating on about HR...sorry to be negative but unless we give the whole and ugly story I cant see the judges overturning this.

[deckster]

doesnt give me any confidence the Supreme court will make any difference in that case if all we are doing is bleating on about HR...sorry to be negative but unless we give the whole and ugly story I cant see the judges overturning this.

You are more than likely correct - but what other choice do we have? Small hope is better than no hope...