What an APN looks like

[webberg]

Does anyone know, do HMRC need to win a judicial ruling on yours or a similar scheme before they can issue an APN? Would they issue you with a follower notice (if there is such as thing) first?

My scheme was with Premier/Tenon and as Premier is no more, I have no idea if HMRC have already challenged my scheme in the courts or plan to do so in the near future.

Our information is that the law firm taking the JR on behalf of a number of individuals is advising that their APN's will be suspending pending a ruling BUT they are advising clients who are not in the group to pay up if they get an APN.

HMRC does not need to win any JR case before issuing an APN.

A follower notice is issued ONLY where a decided case is similar to your situation. To the bets of my knowledge there is no such case and therefore a FN is unlikely.

If you don't know if HMRC has challenged, the best action is to ask them.

[Rab]

Thanks for the reply.

From what I've been reading elsewhere I assumed they'd need to win a case first and issue you with a follower notice before the APN.

Accelerated Payment Notices (APN) can be issued to taxpayers who have used a tax avoidance scheme, have received a Follower Notice and are registered under a DOTAS scheme or the subject of a GAAR counteraction.
10,000 EBT nudge letters in the Christmas post | The Abbey Tax Blog

It just seems crazy that they can force you to pay up with no reason other that they think they'll beat you in court. When they've already lost several times.

What happens if (without your knowledge) your scheme is challenged in court and wins. Will they refund you with interest? I wouldn't bet on it. Chances are you'll never see that money again whatever happens.

ETA - just read that article again it says they can issue an APN to a follower case OR any case covered by DOTAS or GAAR

[webberg]

Thanks for the reply.

From what I've been reading elsewhere I assumed they'd need to win a case first and issue you with a follower notice before the APN.

Accelerated Payment Notices (APN) can be issued to taxpayers who have used a tax avoidance scheme, have received a Follower Notice and are registered under a DOTAS scheme or the subject of a GAAR counteraction.
10,000 EBT nudge letters in the Christmas post | The Abbey Tax Blog

It just seems crazy that they can force you to pay up with no reason other that they think they'll beat you in court. When they've already lost several times.

What happens if (without your knowledge) your scheme is challenged in court and wins. Will they refund you with interest? I wouldn't bet on it. Chances are you'll never see that money again whatever happens.

The ability to issue an APN is NOT dependent upon a FN being issued. the list you quote is an "either/or" not "and".

Arguably HMRC has not lost several times. The arguments they run in Murray and Boyle may vary from those they intend to use in other contractor schemes. We won't know that until we see a Statement of Case that is issued by HMRC to the appellant parties in a proposed hearing. For all I know they may have done this. I would guess that they have gone over the information they have and reached an internal decisions perhaps backed by their in house lawyers. That does not mean that they are correct, just that they have reasonable grounds for dispute, an analysis of the "asserted advantage" and legislation that says that they can hold the tax until a judge decides otherwise.

Crazy? Unfair? Retrospective? Perhaps, but the LAW.

If HMRC take tax from you and it is subsequently decided that this was incorrect, HMRC is obliged to refund you. They are obliged to use their best efforts to identify and repay all those previously charged tax. Failure to do so will leave them open to not only interest (0.5% per annum) but perhaps a fine and an order to pay compensation.

That said, HMRC is not great at this type of exercise and when the boot is on the other foot, they have missed the boat for some tax avoidance scheme users. The chances of them identifying ALL those incorrectly charged are slim. Perhaps 90% plus but not all. The ONLY defence is to keep your eye on the press (professional and national) and if you think you've been missed, let them know.

The UK operates a self assessment system. This means that prima facie, you are responsible for your tax affairs and HMRC's role is to check what you have done and make enquiries as required. If YOU do not keep your tax affairs in order and as a result miss out on a repayment, chances are that it will have disappeared. The time limits for making claims varies and if it can be shown that HMRC is at fault, then is essentially unlimited. If however HMRC has used its best efforts and made no gross errors, then probably 6 years from a decision/event is about the limit. (Complicated area and you would need advice).

[Rab]

If HMRC take tax from you and it is subsequently decided that this was incorrect, HMRC is obliged to refund you.

I can't see how they'd ever decide that this was incorrect after they got your money.

They're almost certainly going to issue everyone on my scheme with an APN and without Premier/Tenon helping I doubt anyone will take the case to a tribunal on their own. I certainly can't afford to risk large sums of money fighting this.

I can't see that relying on similar schemes succeeding will help. HMRC only have to say, sorry that scheme was a bit different to yours and you'd need to go to court to argue the point. Again risking large sums of money with no guarantee of success.

[StrengthInNumbers]

Group together and sums required for courts will be manageable. If schemes did what they said in Dotas submissions, they will win. Loser will be those who said something on tin but did not implemented it.

[webberg]

I can't see how they'd ever decide that this was incorrect after they got your money.

They're almost certainly going to issue everyone on my scheme with an APN and without Premier/Tenon helping I doubt anyone will take the case to a tribunal on their own. I certainly can't afford to risk large sums of money fighting this.

I can't see that relying on similar schemes succeeding will help. HMRC only have to say, sorry that scheme was a bit different to yours and you'd need to go to court to argue the point. Again risking large sums of money with no guarantee of success.

That's a cynical view which I doubt is true. In my experience where HMRC has got it wrong, they do all they are required to (and sometimes more) to correct it.

The other posters here are correct - groups are the way to go.

[webberg]

Group together and sums required for courts will be manageable. If schemes did what they said in Dotas submissions, they will win. Loser will be those who said something on tin but did not implemented it.

I'm afraid your statement is completely incorrect.

A DOTAS submission simply says I'm going to do A+B+C and the answer is D.

Even if you do exactly that, there is no guarantee that A+B+C does =D. The only time you'll know if when either HMRC agree one of the tax years in which it happened, or a judge says so.

DOTAS disclosure is NOT (repeat NOT) any form of approval that a scheme works. It is simply complying with a law that says if you do something with a tax advantage, then you have to tell HMRC who then have a very long time to think about it and if necessary challenge it or change the law.

We have already seen cases decided which were disclosed and the Courts say don't work. We will see many more.

Please DO NOT assume that disclosure means you're safe. Simply not true.

[Rab]

Group together and sums required for courts will be manageable. If schemes did what they said in Dotas submissions, they will win. Loser will be those who said something on tin but did not implemented it.

Group together with who? Only Premier/Tenon have a client list for my scheme and they were meant to be taking a test case to the tribunal.

[webberg]

Group together with who? Only Premier/Tenon have a client list for my scheme and they were meant to be taking a test case to the tribunal.

There's a thread in this forum for users of Premier schemes. I think it works like the others in that there will be a person to contact to join a private forum of those affected. You might want to check that with an admin type?

[StrengthInNumbers]

I'm afraid your statement is completely incorrect.

A DOTAS submission simply says I'm going to do A+B+C and the answer is D.

Even if you do exactly that, there is no guarantee that A+B+C does =D. The only time you'll know if when either HMRC agree one of the tax years in which it happened, or a judge says so.

DOTAS disclosure is NOT (repeat NOT) any form of approval that a scheme works. It is simply complying with a law that says if you do something with a tax advantage, then you have to tell HMRC who then have a very long time to think about it and if necessary challenge it or change the law.

We have already seen cases decided which were disclosed and the Courts say don't work. We will see many more.

Please DO NOT assume that disclosure means you're safe. Simply not true.

I did not meant that. Promotors generally presented the same type of solution. As they were submitting to HMRC they ensured to tick all the correct boxes but many times did not do a correct implementation. Like in Boyle case if forex existed and was brought and sold at market rate it might would have been a different decision.
I am not saying Dotas meant safe. But if many of the schemes implemented what they said on Dotas papers they will be much stronger in answering HMRC challenge.