BN66 - Court of Appeal and beyond

[smalldog]

With all this please god lets not squander our SC opportunity purely on HR!!!!!

There is so much anecdotal evidence that this whole thing stinks and is totally wrong and we need to present all of the facts not just bleat on about human rights which we all know is a very tough mountain to climb.

[DonkeyRhubarb]

With all this please god lets not squander our SC opportunity purely on HR!!!!!

There is so much anecdotal evidence that this whole thing stinks and is totally wrong and we need to present all of the facts not just bleat on about human rights which we all know is a very tough mountain to climb.

I'm afraid HR (and PwC's EU Treaty) is all we've got.

We are challenging primary legislation of Parliament, and only European law trumps Parliamentary supremacy.

Sometimes it's easy to forget that we are not fighting HMRC. HMRC are bound by an Act of Parliament (s58 FA 2008) to collect tax from us. The fact that they devised the legislation, and are defending the case in court, is immaterial.

[seadog]

And here is the best bit of all.

Norman Lamont - "As the professional press has pointed out, leaving the clause unamended would lead to loopholes that would be much exploited. However, I appreciate that that is not the Committee's main concern."

Do you grasp what he's saying here?

He is acknowledging that the clause (ie. the 1987 legislation) as drafted would lead to loopholes that would be much exploited but that was not their concern.

They knew they were leaving loopholes but they weren't bothered. All they were interested in doing was stopping thousands of taxpayers gaining a windfall as a result of the court case Padmore -v- IRC.

You could almost say that Parliament in 1987 gave a nod to our scheme.

Hi DR

If HMRC win in the SC Brannigan said in his last newsletter they are getting ready to take test cases to the tax tribunal so they can tehn take enforcemtn action to start collection

We need to ensure that Mont P insist on taking a test case were the Closure notice was issued before BN66.

That would mean they could only rely on the arguments stated in the original pre BN66 closure notice and not bring in new evidence ie S58.

[jeanvaljean]

I'm afraid HR (and PwC's EU Treaty) is all we've got.

Does the above hold for the SC hearing only?

If / when the case goes to Europe, will that be the opportunity to put the full story to an impartial set of judges?

Or, is it that even if / when it gets to Europe, that court too will judge only on the HR aspect?

[DonkeyRhubarb]

Does the above hold for the SC hearing only?

If / when the case goes to Europe, will that be the opportunity to put the full story to an impartial set of judges?

Or, is it that even if / when it gets to Europe, that court too will judge only on the HR aspect?

The European Court of Human Rights in Strasbourg would only judge it on HR. Likewise, if PwC's case was to end up in the (separate) European Court of Justice, it would only be scrutinised against the EU Treaty.

[OnYourBikeGB]

The European Court of Human Rights in Strasbourg would only judge it on HR. Likewise, if PwC's case was to end up in the (separate) European Court of Justice, it would only be scrutinised against the EU Treaty.

Assuming we get beat at the SC, what have we going in our favour at the tax tribunal? Can they consider the retrospective nature of the legislation, or is it going to be down to the legislation as it applies, and we therefore have to prove it doesn't cover us?

[smalldog]

The European Court of Human Rights in Strasbourg would only judge it on HR. Likewise, if PwC's case was to end up in the (separate) European Court of Justice, it would only be scrutinised against the EU Treaty.

So if we dont win on HR grounds all is lost, doesnt matter how sh*t, wrong, dirty, lazy HMRC have played thats it????? you gotta be kiddin me....we have zero recourse? or is that where the tax tribunal comes into play?

[DonkeyRhubarb]

Assuming we get beat at the SC, what have we going in our favour at the tax tribunal? (1) Can they consider the retrospective nature of the legislation, or (2) is it going to be down to the legislation as it applies, and we therefore have to prove it doesn't cover us?

(1) No
(2) Yes

A tax tribunal can only consider the law as it stands. They can't debate the rights and wrongs of legislation enacted by Parliament.

[seadog]

(1) No
(2) Yes

A tax tribunal can only consider the law as it stands. They can't debate the rights and wrongs of legislation enacted by Parliament.

DR is partly right that the Tax tribunal will judge it on the law is it stands but its not quite as clear cut as that.

As I understand it before HMRC can collect they need to go through the appeals process which is currently suspended pending the outcome of court proceedings.

When HMRC issue a closure notice they have to give reasons and they can only fight the case in the Tax tribunal based on the reasons stated in the closure notice.

Hence it follows that if the test cases are based on closure notices issued before BN66 and then its my understanding HMRC cannot use that argument in their case.

Judge Parker has already said that Mont P has a strong case against the Archer Shee and S739 arguments so when it goes to the Tax tribunal maybe the case is not so watertighjt as HMRC are suggesting

[DonkeyRhubarb]

So if we dont win on HR grounds all is lost, doesnt matter how sh*t, wrong, dirty, lazy HMRC have played thats it????? you gotta be kiddin me....we have zero recourse? or is that where the tax tribunal comes into play?

As stated above, a tax tribunal can only apply the law as it stands. They can't overturn/negate an Act of Parliament.

When Parliament passed this legislation, HMRC's bad behaviour became largely irrelevant.

We are now challenging the law of the land not HMRC's mischief leading up to it.

There are other forms of recourse that have previously been mentioned but I'm not sure they would achieve much.

1) Complain to Parliament that it was misled by HMRC. Not sure how you would go about doing this but perhaps through the Speaker of the House.

2) Complain to the Parliamentary Ombudsman about HMRC's behaviour. This would require exhausting HMRC's complaints procedures first.