BN66 - Court of Appeal and beyond

[GBHuhd]

Time to Prepare

Since this has been looking gloomy for a while, i took a bit of time to chat to various advisors as to what the next steps would be if things went pear shaped, which they seem to be doing.

My own personal fear is that the revenue would enforce a sale of assets, which, although would probably cover my liability, would no doubt come at the worst possible time and leave me essentially homeless (which is my pension pot since that all went belly up) and bereft of any decent savings plan.

The advice i have been given, once HMRC decide they can go ahead and pursue; is that the process will pass through a number of different, unlinked and presumably hopelessly disorganised departments before it gets close to that stage. It does seem though, the critical point is to contact and agree a plan with them before it gets into the nonsense bureaucracy of the system, where the ball will be difficult to stop rolling. I would think you have to do this yourself, rather than rely on MP to do for you - if anyone would like the details of what i was told then please PM me.

By the way, i am not planning on doing anything personally at this stage, i will wait and see what happens once the dust settles, and only pursue this option when it is clear that all is lost...unless by some miracle we are offered a nice deal...right.

I think a valid point has been brought up around the way the case has been presented, i'm not a lawyer and presumably MP took the human rights angle as they thought that was the best chance of winning, but having read both judgements (this and the previous one) it seems that the problem with the HR angle is that it gives the judges the scope to decide if something was 'fair' rather than was it 'legal', and it seems nobody really wants to make a big decision on a point so woolly.

Whether or not the shiner case (not read it myself) has a better chance of getting somebody to answer the question of legality rather than fairness remains to be seen..i have to admit i am fairly pessimistic to the chances of any kind of court ruling this was not 'fair' to us, even the limp wristed eurocrats over in brussels.

One thing that is incredibly short sighted from the political view about all of this, is that i will never, ever, ever return to england to work and pay another penny of tax into the system after this shambles - as far as i am concerned the place can rot. Its not exactly an incentive to work in the country now is it ? I will of course, be claiming the pension which am i due, as my fair share

[Tax_shouldnt_be_taxing]

Isnt it a bit late in the day to decide or at least question whether that's the right angle of attack? Excuse me but what strategy have MP been following for the last two court cases?

At the WG presentation, I was told this is a loophole in the DTA. So, I find it hard to understand why exactly we have gone down the HR avenue instead of following up the principles MP said the scheme was founded upon.

Its as if they have chucked that overboard and jumped on the HR bandwagon (which we know only serves illegal immigrants, theives and the like).

The point I allude to is that what Counsel mainly did at the CoA was question Parkers ruling and the CoA sided with Parker with the same total loss for us. Yet there are perhaps other questions that are less easy for a Court to answer in such a way as to let HMRC off the hook.

Consider whether the scheme was legal. Parker infers there are good grounds that it was and TN63 supports that. But to ask the relevance of that to A1P1 seems to carry little weight.

If you posed the question to Mummery along the lines "If this was 2007 would you have ruled in favour of HMRC being able to enforce collection on A1P1 grounds and if so why?" is rather different and I doubt Mummery would have been at ease in saying yes. After all, to say yes would also mean having to declare the scheme was illegal (according to written law) and that is not proven.

Simply an observation that I'm not sure the right question(s) have been posed in terms of HR and the CoA did not go off on a tangent to look for scenarios where they could give us a win. That's the job of Counsel. Not suggesting I know better than they. I don't.

[ToothFairy]

Isnt it a bit late in the day to decide or at least question whether that's the right angle of attack? Excuse me but what strategy have MP been following for the last two court cases?

At the WG presentation, I was told this is a loophole in the DTA. So, I find it hard to understand why exactly we have gone down the HR avenue instead of following up the principles MP said the scheme was founded upon.

Its as if they have chucked that overboard and jumped on the HR bandwagon (which we know only serves illegal immigrants, theives and the like).

As I understand it ...

1) The arrangement was based on a loophole in the DTA, as MP originally told us.
2) HMRC have closed that loophole.
3) However, HMRC are effecting closure of the loophole retrospectively.
4) It is the restrospective closure of the loophole that is being challenged using the HR route.

So I think MP have been using the correct approach during the last 2 court cases. Good luck to them going forward.

[orientalist]

Thanks DR. Is it advisable to contact HMRC directly to work out individual liability? MP haven't been able to provide an accurate figure and I'll need this for a CTD. Note also in it for the long run..

Just been on the gateway and viewed the suspended amounts, not as much as i'd feared, how confident is everyone that the amounts shown will stay as they are now, or will HMRC revise them?

[DonkeyRhubarb]

if we do eventually lose I will be looking for MP to refund me the fees by default.

They are not going to offer refunds so you would have to sue.

And who would you sue?

Everyone talks about Montpelier as though it's a single company. It isn't. It is a group of limited liability companies and it's quite fluid in nature. Notice I emphasise the word fluid.

Even if the actual company in your contractual agreement still exists, do you think it will have any assets?

Remember, it's limited liability.

What I'm trying to say, and this applies to others who have talked about suing them for negligence etc, is FORGET IT.

Harsh but that's the reality, and besides look where AJ has ended up. He just lost his latest round in the IoM courts last month and is facing total ruin.

[silver_lining]

Amidst all the furour.........
For example:
Is BN66 in breach of A1P1?
versus
Is my CN to stand in light of the fact my SAR was accurate and legal

Different questions to ask of different bodies on different grounds. The 2nd one has nothing to do with BN66 or HR. It has everything to do with you. And thus far, has not been asked or tested (due to CN appeal suspensions as Singh QC confirmed).

Maybe I have the wrong end of the stick but when the existing legislation got bastardized (clarified in the Queen's english); the whole argument around was it legal at the time the SAR was submitted got a firm answer; and the law says No it was not....

So that left open one item with the new legislation - retrospection...... so what legal principle can you attack the new legislation and its use retrospectively and that simply left A1P1.

This is why I had always thought it was an up hill battle because the legal points you can pick apart the new legislation were limited......the nightmare scenario was royal assent....... This made sense to me in terms of why our legal had taken the specific approach they have....

But maybe I have it wrong - if so great, please tell me more, I need my hope again !

[normalbloke]

Look, we all want an end to this.

Some people may think this has become a bit of hobby for me but trust me I want this to go away just as much as everyone else.

If HMRC offered me a deal tomorrow I'd be tempted but I know that ain't going to happen.

Most of us are caught between a rock and a hard place. We want this to end soon but the consequences of having to cough up are far worse.

For me, there is no option other than fighting on to the bitter end.

I'm in for the long haul. There is no way I am going to pay anything to HMRC until I am forced to. The thought of any negotiation prior to this, with some sneering incompetent jobsworth makes me feel sick.

[Tax_shouldnt_be_taxing]

Enforcing Judgements in Litigation

Read the last paragraph.

HM Revenue & Customs: Enforcement of judgements in litigation

"HMRC will not enforce payment in cases where to do so would be likely to drive the taxpayer into liquidation or bankruptcy."

If I read this correctly, if you are in dispute with HMRC over a tax underpayment claim and that dispute is in litigation (doesn't restrict that to any Judiciary or body) then HMRC will not enforce collection. So whilst your CN is in litigation, or under appeal HMRC are stating that if there is a likelihood of liquidation or bankruptcy they won't collect. And legally, liquidation means illiquid or unable to pay.

Happy to be corrected but that is what I read.

[johnnyguitar]

Read the last paragraph.

HM Revenue & Customs: Enforcement of judgements in litigation

"HMRC will not enforce payment in cases where to do so would be likely to drive the taxpayer into liquidation or bankruptcy."

If I read this correctly, if you are in dispute with HMRC over a tax underpayment claim and that dispute is in litigation (doesn't restrict that to any Judiciary or body) then HMRC will not enforce collection. So whilst your CN is in litigation, or under appeal HMRC are stating that if there is a likelihood of liquidation or bankruptcy they won't collect. And legally, liquidation means illiquid or unable to pay.

Happy to be corrected but that is what I read.

I wonder what qualifies as 'unable to pay' - as an individual I might not have the cash/savings to pay.
But I might be able to raise more money by taking out loans/re-mortgage or borrowing from family.

Difficult to judge what would be the best route - tall HMRC 'this is all the cash I have' or borrow elsewhere ?

[screwthis]

Read the last paragraph.

HM Revenue & Customs: Enforcement of judgements in litigation

"HMRC will not enforce payment in cases where to do so would be likely to drive the taxpayer into liquidation or bankruptcy."

If I read this correctly, if you are in dispute with HMRC over a tax underpayment claim and that dispute is in litigation (doesn't restrict that to any Judiciary or body) then HMRC will not enforce collection. So whilst your CN is in litigation, or under appeal HMRC are stating that if there is a likelihood of liquidation or bankruptcy they won't collect. And legally, liquidation means illiquid or unable to pay.

Happy to be corrected but that is what I read.

So to spell it out if all your assets are tied up in property or a company of which you are a director (or as in my case a company that owns property) they won't force you to liquidate those assets??
Can't see them letting you pay down your mortgage and then claim you can't pay