BN66 - Court of Appeal and beyond

[DonkeyRhubarb]

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.

I assume you are referring to the Closure Notices issued to the 4 test case users in early 2006?

Montpelier tell me that HMRC have issued new notices to these users, citing s.58, without withdrawing the old ones.

Are HMRC allowed to do this? Who knows but they seem to break the rules left, right and centre to suit them.

[TalkingCheese]

Did anyone get a CN earlier than BN66 ?

...
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.
...

Dont know about anyone else but my CN was issued end of 2008 (that early Christmas present). I guess they knew the above which is why they waited and would expect most to be in this position ?

Just read the CN and it doesnt actually state a reason just "I would refer you to earlier correspondence for further background...". Quality !

[seadog]

I assume you are referring to the Closure Notices issued to the 4 test case users in early 2006?

Montpelier tell me that HMRC have issued new notices to these users, citing s.58, without withdrawing the old ones.

Are HMRC allowed to do this? Who knows but they seem to break the rules left, right and centre to suit them.

Their actions seem to recognise the point I have made that if they went to appeal using the old Closure notices they were on sticky ground.

If MontP had put in appeals on closure notices issued before BN66 /S58 I would be surprised if HMRC can just cancel the old ones and issue new ones if the appeal is already lodged.

Something we need to draw to the attention of MontP and get some advice on the strength of this argument.

But knowing how underhand HMRC behave I would not put it past them to try.

[SantaClaus]

Interesting article here:

RBS staff held in tax fraud investigation - Telegraph

Wonder if this really is tax "evasion" or an attempt to blur the boundaries between avoidance and evasion again?

[Disgusted of Coventry]

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.

It shouldn't be a problem. This case has Human Rights written all over it.

A signatory to ECHR is asserting its commitment to upholding the rights of the individual under the Rule of Law. It would be abhorrent to a signatory party that a group of people should be subjected to a long drawn out, Kafkaesque ordeal such as this. A group of people who had neither broken any law, nor been informed of any future retrospective changes to the law.

And don't forget the manipulation of language, and the rewriting of history - that's Chapter 1 of "The Dummy's Guide to the Progressive Erosion of Human Rights".

[SantaClaus]

It shouldn't be a problem. This case has Human Rights written all over it.

A signatory to ECHR is asserting its commitment to upholding the rights of the individual under the Rule of Law. It would be abhorrent to a signatory party that a group of people should be subjected to a long drawn out, Kafkaesque ordeal such as this. A group of people who had neither broken any law, nor been informed of any future retrospective changes to the law.

And don't forget the manipulation of language, and the rewriting of history - that's Chapter 1 of "The Dummy's Guide to the Progressive Erosion of Human Rights".

Let's hope the ECHR judges have read the dummies guide. The UK judges certainly didn't.

[BrilloPad]

Question for DR (or anyone more intelligent than me which is most of you) :-

http://forums.contractoruk.com/gener...ml#post1482401

[Morlock]

Question for DR (or anyone more intelligent than me which is most of you) :-

http://forums.contractoruk.com/gener...ml#post1482401

I don't think employer's NI contribs will be sought from Montpelier, because HMRC are demanding back-payment of Class 4 NI contribs as if the individuals on the scheme were self-employed...?

[Tax_shouldnt_be_taxing]

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.

DR, some salient truths here. The HC ruling and CoA ruling show that we're not likely to get anywhere on an HR footing with this. Even if this ends up in the SC, I really doubt a win on HR grounds given the CoA ruling especially - I stand by my views from last year that the CoA was the first test. IMO the HR route on evidence has been defeated thus far 2-0. So rather than hedge my bets on what the SC route or even the Strasbourg route offers (the latter taking longer than Brussels to realise Greece needs to dip out of the Euro), I consider the following:

Winning on HR gounds thus far has failed - A better defence in the Courts may have helped but what is done is done.
Winning on HR grounds at the next level or the one after that does not have a good track record.

So park for now whether HR gives a case or not. Take a point raised here earlier and last year and numerous times before - EVIDENCE.

Now I'm not going to try and get hopes up or suggest a line of redress that trumps all and actually part of me considers that the "establishment" will get its way. And you know what? From the outside looking in and perhaps without a deep understanding of this and the facts and history I might think "well just pay up like the rest of us". But I like others do have history and facts on this.

Not going to bang the same old drum (again), but HR aside and win-lose aside, if the day of reckoning comes, then my position based on evidence (not least from the then IR and Hansard) is this. Will it work? Don't know. Is is true? 100%

Case for:
S58 is law and on HR grounds has been supported by the HC and CoA (and SC?)
S58 is a clarification (Hansard) and is retrospective as was Clause 62 (Hansard)
S58 clarifies the bebeficiaries affected by the Padmore legislation to include persons beyond Partners of a foreign Partnership and was always intended.
Padmore retrospection ensured that the Exchequer was protected from an unexpected loss for the previous 6 years

Case against:
Padmore legislation applied retrospection to ensure that 15,000 partners in a foreign partnership (Hansard) could not claim tax deducations not already made for the previous 6 years.
Padmore identified a specific group of taxpayer (quote Seadog and Hansard) as being affected by retrospection so they could not claim relief not yet claimed for.
Hansard clearly states that this limitation was to prevent Partners claiming relief from the Treasury not yet applied for rather than BN66 which prevents relief already claimed for being allowed.
Clarification of Padmore via S58 is in conflict since the latter does the opposite of the former for the purposes of taxation - A first in UK tax law. Written evidence from the then IR and Hansard (Parliament) in 1987 confirms this when compared to the current case and the passing of S58 in Parliament.
S58 retrospection can only apply to Partners in a foreign partnership and that is not the Scheme unless you choose to look through the arrangement yet Parker is on the fence on this point.

I'm staying off the wires on all of this since I have found that a life outside of the worries of BN66 is rather good. But if push comes to shove and the HR angle is lost, then using only the text of IR documents and Parliament from 1987 to contrast to the claimed clarification of S58 of the same, if the brown envelope arrrives, then these facts will be entered as to why S58 does not apply to me anymore than it should apply to anyone else in this Scheme.

Outsiders may smirk at such a notion, that is their choice. If found against then the law says I pay or go bankrupt. But whilst HMRC may be applying statute as DR rightly says, IMO, they are as their website states "sitting at the knee of Ministers" in terms of their legal folks in London so cannot be free of any involvement.

I'm not making this personal. The law is the law. But for me at least, there is a story and a journey from Padmore to BN66 that has not been told to those who rule and decide. It's the elephant in the room if you will. Win or lose on HR or pure legal grounds in the Tax Courts is less the point for me personally. But the story needs to be told and the journey taken. After which, closure one way or the other.

As for outsiders, I have no interest. All my financial affairs were 100% declared. If illegal then I pay. If immoral then set rules on morality. If "unfair" then set the rules on "fair". A wholly irrelevant set of points. So until we have a system that converts these intangbles into rules or directives, I take pride in never taking a handout from the State, using hospitals or taking up GP time on a cough or waiting for the Council to clean up the leaves on my road etc.. No saint folks and I do pay into the system.

This debacle will be resolved soon one way or another and everyone will move on, one way or another. But to go down if that is what happens without making the obvious statement that BN66 is not Padmore by way of clarification or even mild ammendment and to use the evidence of Parliament and the IR in 1987 to prove it compared to Parliament and HMRC in 2008 will be a victory in itself. By all means, say you're bringing in new legislation to replace the old one which was faulty and had loopholes and be open and say yep, this is tough stuff and sorry, you're getting hit with retro even though you may not have seen it coming becuase what you are doing is not acceptable. But that is far different from hiding behind 20 year old legislation that aimed to achieve the exact opposite of what S58 claims. That's worse than unacceptable (transparent)avoidance - it's abject denial of systemic failure and evasion of responsibility shrouded by misrepresentation of existing law purported to be for the common and collective good.

[SantaClaus]

This article in the Daily Mail more or less confirms my opinion of our High Court Judges.

Nursery worker who filmed himself raping a three-year-old girl has prison sentence cut 'to encourage other paedophiles to admit to their crimes' | Mail Online

"Yesterday Lord Chief Justice Lord Judge told the court that cutting Wilson’s minimum sentence would encourage other paedophiles to admit their crimes."