BN66 - Court of Appeal and beyond

[Toocan]

"Treated as always having had effect" may be the most powerful words any legislative body can utter; but they are an open door to the Twilight Zone.

From 21 July 2008 the Finance Act (No.2) 1987 is and always has been the rigorous expression of parliamentary will that it was hoped to be. There is no provision or absence of provision that would confer upon the beneficiaries of a trust no matter how that trust, it's trustees, or a partnership of those trustees, was structured a relief from UK tax under double taxation agreements. It is certain that no scheme would subsequently be conceived to exploit that aspect of the legislation, and that there would be no subscribers to a scheme not conceived. That is the reality if one is not to suffer the paradox. Unfortunately actions cannot be undone for events to unfold differently when the historical context is rewritten. So how to reconcile the consequences of this intellectual indulgence?

In a curious corollary while placing an unexpected obligation on the taxpayer retrospectivity places a no less significant obligation on the tax collector. It may be argued that an excessive delay in bringing about a conclusion to an investigation given the legal clarity that the matter has enjoyed since 1987 is not without implication for sums sought in interest and other liabilities that accrue over time.

There is an absurdity here that diminishes those who would not acknowledge it. It is to be hoped that the matter is taken to Europe where free of the distractions that often interfere with national instruments it receives the dignity of attention it deserves.

That is a genus insight. Effectively what you are saying is that HMRC should have told us their argument against the scheme from their first letter. They therefore delayed without just cause. It also means that where they sent out calculations they cannot claim that they didn’t know they should have been different. Because to do otherwise is to disrespect Parliament who told them that the clause always existed.

That could lead to an accusation of malfeasance in public office against HMRC officials.


There is another way to roll up the issue – let’s assume that tax/NI/Interest is now due and that we accept that. Perhaps HMRC are now due us compensation for how they have behaved and for their failures. That compensation may cover the tax bill that they claim.

There is more than one way to skin a cat.

[Toocan]

HMRC have no rule book at all

The Supreme Court’s decision not to touch the Court of Appeal’s decision has given HMRC (albeit through Parliament) the power to enact retrospective legislation as they please.

Yes, a specific piece could be sent for further scrutiny to the Supreme Court, but the bar is now very high.

There is a public policy angle to this which is grave indeed: There is now no motivation for HMRC to actually do their job properly first time. When they get it wrong (and they seem to be getting it wrong a lot recently) they can wonder over to their friends in The Treasury and do a retrospective fix.

HMRC have no rule book at all.

This was seen in the Robert Gains Cooper case where HMRC were 100% against the advice they published in their own leaflet. In that case they ignored their own advice, now they can change their advice retrospectively.

Does this not concern any of our Members of Parliament? Look at what has been created.

[jeanvaljean]

Paradox

A paradox, a paradox, a most ingenious paradox! (Pirates of Penzance.)

So we now have George Orwell, HG Wells, Kafka, a Dr Who time warp, a Jarndyce and Jarndyce court case and a Gilbert and Sullivan paradox all thrown into one.



Here's a how d'you do! (Mikado)

Well, it's in to le parliament p a parliament nous irons. (Iolanthe - kind of!)

[Disgusted of Coventry]

There is a public policy angle to this which is grave indeed: There is now no motivation for HMRC to actually do their job properly first time. When they get it wrong (and they seem to be getting it wrong a lot recently) they can wonder over to their friends in The Treasury and do a retrospective fix.

HMRC have no rule book at all.

It looks that way doesn't it!

HMRC appear to be trying to use the purposive\moral justification angle to deflect attention away from their appalling misdeeds. It happens so often, nowadays, that it could almost be their internal strategy.

[funjim]

I'm not as knowledgeable as most of you

But has anyone thought out loud

"if this was clarification why did they sign off so many tax returns over so many years ? "

Eg let's say three thousand over four years .. Thats twelve thousand chances to say nope your return is wrong .. You've misunderstood the law as it stands ... Allow me to clarify

They didnt so that's ... indicative they werent wrong .. Or gross negligence over a prolonged period ...or just tulip ... Or all of the above

[ContractIn]

Basically repeat of November letter - but adds that we have now lost appeal to supreme court and HMRC propose to move ahead with collection. And we should settle now.

Ignore it - it is what Mr Gittins of Montpelier says that will count. HMRC are not home and dry yet.

Sorry but I don't want to go against the grain here, but do you know something we don't with regards to what MP will say? Personally I resided to losing this a long time ago, HMRC just don't play fairly and I'm sure words were said so the Appeal never got the light of day.

MP's lack of a timely response is typical. I have no idea what HMRC's letter says but I can't see how MP's will give me any glimmer of hope either. My view is i need to work out a payment plan.

[BolshieBastard]

Sorry but I don't want to go against the grain here, but do you know something we don't with regards to what MP will say? Personally I resided to losing this a long time ago, HMRC just don't play fairly and I'm sure words were said so the Appeal never got the light of day.

MP's lack of a timely response is typical. I have no idea what HMRC's letter says but I can't see how MP's will give me any glimmer of hope either. My view is i need to work out a payment plan.

Im with you. HMRC's previous letter about collect if the appeal failed wasnt just a shot in the dark imo. Government Departments get to know information before others. They stop anything getting in the public domain by slapping 'D Notices' on the infor they dont want publishing but in this case, I summise HMRC were tipped the wink that the SC would reject leave to appeal.

I will of, course, wait to see what MP have to say. When it does finally arrive, it'll probably be 'we are very disappointed that Leave has been rejected' and 'we consider our grounds were substantial' etc. No doubt it will end with 'the fight will go on' and perhaps it will for those facing financial ruin after using this scheme.

For others who can pay, maybe this will be the time when they get off the bus and start afresh wiser?

[VictorValiant]

Steed

If Steed are challenging the same ruling on similar grounds to MP but direct to ECHR (bypassing the UK court system) then what are HMRC views on pushing for final demands and payment for those individuals involved in that case(s)? Those going through MP should at the very least be subject to the same treatment from HMRC.

[jeanvaljean]

Que?

Going over old ground here but:

Definition of tax avoidance - Tax avoidance is the legal utilization of the tax regime to one's own advantage, to reduce the amount of tax that is payable by means that are within the law.

:"HMRC submits - and this did not appear to be seriously disputed by...[Huitson's lawyer] - that such elaborate arrangements would not have been entered into other than for the purpose of tax avoidance

logic.....circle.....legal........logic......circl e.....legal......logic.......cannot compute

HAHAHAHAHAHAHAHAHAHA!!!!

Our situation is indescribably insane - a huge thank you to the Members or Parliament who voted through this legislation. Good job.

I'm glad the UK is a signatory to the ECHR.

[smalldog]

I agree with what's been said so far that we need to wait and see what mp say now however from memory the earlier hmrc circular said in prep for losing at the sc stage hmrc and mp are prepping to take cases to the tax courts. In that case I can't see anything happening re collection until that's settled.