BN66 - Court of Appeal and beyond

[smalldog]

huh??

Im struggling to see why HMRC would be willing to negotiate, they are holding all the cards and have two court wins under their belt.

On what basis would you be arguing for a reduction or more favourable terms?

[IH8GordonB]

Im struggling to see why HMRC would be willing to negotiate, they are holding all the cards and have two court wins under their belt.

On what basis would you be arguing for a reduction or more favourable terms?

Personally I'm not in favour of making settlements but everyone has their own personal situation to consider, not to mention sanity.

But the only argument that I can think of that might entice a settlement out of Hector would be one that says get some money from me now and you get to keep it even if you lose the final round in the SC. Hence Hector collects some tax even if they lose the final round.

That said I think the only real argument for a settlement now rather than payment in full would be if you can clearly show that you will be bankrupted.

[Emigre]

Rabinder Singh

I see that Rabinder Singh, the HMRC Counsel in the Huitson case, has been made up as a High Court judge with effect from September.

Matrix silk confirmed as High Court judge in latest appointments | News | The Lawyer

Congratulations to him. He is a skilled and worthy addition to the Bench.

[seadog]

Complaint against HMRC

Im struggling to see why HMRC would be willing to negotiate, they are holding all the cards and have two court wins under their belt.

On what basis would you be arguing for a reduction or more favorable terms?

HMRC might have won the last two battles but the war is a long way from being won by them.

In addition to the Supreme Court and then the European Court of Human Rights there is also the question of Minister/HMRC misleading Parliament.

It is quite clear from the evidence which has come to light in the legal headings (TN63 etc ) that HMRC have been rather ecumenical with the truth when briefing ministers and Parliament

I have no doubt if we launched a formal complaint against HMRC and followed this up with a complaint to the Ombudsman, HMRC would come out of it with rather a lot of egg on their face.

That is just another line of attack to follow up in due course.

[Mojito]

Tax Tribunal Process

Assuming the courts fail and then cases start to go to Tax Tribunals, how much weight will the three learned judges view that the 'clarification' HMRC claimed was in fact a change? Surely this seemingly insignificant statement coming out of the CoA has to have significant implications in relation to the retrospection angle, regardless of the HR decision.....?

[Tax_shouldnt_be_taxing]

Will do.

I think it's very unlikely that you will get much in the way of concessions but I can't see any harm in asking.

A word of warning though.

I would be very wary about contacting HMRC yourself. Unless any negotiation is done without prejudice you could find yourself being tricked into admitting liability.

It's best to go through an accountant or tax advisor who is experienced at dealing with them.

Or to be legally precise:

Without prejudice save as to costs

This ensures that what you are offering settlement for (in any circumstance) does not impair the legal rights to claim legal costs where applicable. Small point but one which makes a difference on legality of using any statement of settlement offers.

And before an armchair lawyer jumps down my throat, any communication that relates to a disputed sum of monies can use this legal phrase providing there is a reference to the monies claimed and any reference to suggested settlement.

So you can use it with a letter that says something like:

Without prejudice save as to costs

You want how much? 50K? You must be kidding. Given X,Y & Z I'm not in any mood to even think about paying that. I'm more of a mind to bring a claim of misfeance against Mr B and Mr D over all of this. So I suggest a much more fair settlement figure of 12 quid over 12 months or a complete settlement of 12 quid payable immediately.

I know I jest somewhat about the above, but once you have laid claim to an offer with this clause it cannot be used as evidence. Actually, whilst in jest it's not a bad offer.

But seriously as DR says, get a legal opinion of how to construct such things.

[Tax_shouldnt_be_taxing]

Assuming the courts fail and then cases start to go to Tax Tribunals, how much weight will the three learned judges view that the 'clarification' HMRC claimed was in fact a change? Surely this seemingly insignificant statement coming out of the CoA has to have significant implications in relation to the retrospection angle, regardless of the HR decision.....?

I think it is known as the elephant in the room.

BTW, never one not to concede a point, an ealier post about northernSoul was incorrect. He / she did smell of HMRC. But it turns out that he / she merely has a decent legal background. Apologies to NS if any offence was taken. Indeed NS made as I said at the time some very good points. It's worth noting that Parliament is supreme (it can do whatever it likes), is how Parliament is positioned. But remember Parliament enacted HRA which means it allows the Judiciary to intervene and make Acts of Parliament unlawful for specific application. Legally, it might not be possible to defeat BN66 on the basis of a fight with HMRC since it was Parliament that enacted it and passed into law via Royal Assent. But any idea that a fight with Parliament on HRA grounds is doomed because of 'supremacy" should remember that the same supremacy applied HRA to allow Parliament to be challenged. And there was only one place in the past where that could happen, the HoL or now the SC. And given this case sets a precedent never before seen, there is no less a court that would want to go near it. After all, the CoA as their ruling states is to rule on the ruling of Parker, not to look at a wider debate. So all we know for sure is that Parker was right in the view of the Courts. But nothing there addresses the points DR raised earlier.

This is not a hype angle for us. It's just a fact. So, sorry NS, got you figured wrong. But I stand by my statement that you made some very good points!

[DonkeyRhubarb]

Retrospective pension contributions

Personally I think this is almost certainly a non-starter.

Why?

Because pension rules are layed down in legislation (the Pension Acts), and neither HMRC nor pension companies have any discretion in applying them.

However, I'm going to ask a tax advisor about it.

[DonkeyRhubarb]

But any idea that a fight with Parliament on HRA grounds is doomed because of 'supremacy" should remember that the same supremacy applied HRA to allow Parliament to be challenged.

This is a crucial point and, moreover, it is not a "fight" with Parliament at all since Parliament gave the courts power to scrutinise it's own legislation by virtue of the Human Rights Act.

Perverse as it sounds, the courts are actually respecting the will/supremacy of Parliament by challenging Parliament.

There is only one Act of Parliament that the courts cannot question, and that is the Human Rights Act itself.

[Emigre]

Personally I think this is almost certainly a non-starter.

Why?

Because pension rules are layed down in legislation (the Pension Acts), and neither HMRC nor pension companies have any discretion in applying them.

However, I'm going to ask a tax advisor about it.

Perhaps we should all retrospectively be deemed to have invested in gold when Gordon Brown sold it. Sorted.