Originally posted by Tax_shouldnt_be_taxing
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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.
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.
Before HMRC can start to collect they must go through the usual SA appeals procedure. Branniagn in his last newslettr said that HMRC were going to start talking to scheme promotoer, presumably MontP Steed (KPMG) Shiner et al (PwC) to take some test cases through the tax tribunals.
This analysis is a very cogent argument about how MontP can show that even with S58 in place there is still doubt about its legality in respecet of all of us.
No doubt this will filter its way through to Mont P ad their QC's. Or at least DR will make sure it does.
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