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Tax case on jurisdiction of s 739 - ToAA - Fisher

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    #11
    Originally posted by jbryce View Post
    So, cutting to the chase, does this mean that the "Ramsay principle" can be applied to almost any situation other than straightforward PAYE?

    In essence, any arrangement I make could be successfully challenged? no matter how legal it may appear to be?
    Not quite.

    Compare a contractor agreeing to do some work for a bank.

    One way of doing this is for contractor and bank to agree the services in a contract, along with remuneration, expenses etc. The agreement is completed, work begins and invoices are issued. All very commercial. The tax consequences of the invoicing etc are then dealt with by the IR35 rules, or perhaps MSC/PSC rules. The sequence is however commercial deal leading to taxable income. There are no agreements that alter the nature of the income (or at least say they do).

    Another way is for the contractor to engage with a third party, perhaps outside the UK, who will effectively invoice the bank. The contractor then has an arrangement with the offshore intermediary under which he/she gets money in the form of salary/loan/dividend etc. The taxation of that cash flow is dealt with by rules that may or may not see the receipt as income, immediate or deferred.

    Ask yourself, why did contractor choose one method over another?

    Whilst choosing the low tax option is not a crime and is certainly not avoidance, HMRC will ask themselves whether any of the arrangements in the second scenario above are there solely to get a tax effect. For instance, why does the gross invoice value get split into three parts (salary, fees, loan) and are they really loans? If not, what are they? Is this a fiction created by documents because a loan is not taxable and salary is?

    If a judge says that, taking a step back and ignoring the legal noise, the documents are just there to create a tax fiction, you are on the back foot.

    If on the other hand, the bank said "All my IT is paid for from location X and therefore you make arrangements for a non UK payer to make a payment to a non UK recipient, that is probably more defensible".

    The real pain is that many years ago most banks and similar who employed contractors were facing increases in costs as IR35 et al started to bite. The ability of some contractors to charge the same (or lower) rates because they had tax arrangements that reduced their costs, was welcomed and that became the benchmark rate. Competing against that with a gross income type arrangement would see you very soon with no work. The tests above unfortunately DO NOT take into account the fact that the market moved (partly because to do so would mean that tax policy has impacted commercial life and the Government - of all colours - would deny that for ever) and that the EBT style arrangements had BECOME THE NORM.

    That is one line of argument that absolutely must be followed although I fear it will be a difficult one to win.

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      #12
      Originally posted by jbryce View Post
      So, cutting to the chase, does this mean that the "Ramsay principle" can be applied to amost any situation other than straightforward PAYE?
      My answer would have been yes, but Rob's answer is clearly more informed.

      I am surprised HMRC haven't applied the Ramsay Principle more often, because it looks like it can be used to take down many of the schemes that have cropped up. Maybe it adds a lot of complexity to the case and up until recently, HMRC just couldn't be arsed.

      Originally posted by jbryce View Post
      In essence, any arrangement I make could be successfully challenged? no matter how legal it may appear to be?
      Extra emphasis on the word "appear" - because if it fails the Ramsay principle - it was never really legal to begin with.

      And you can bet that almost all "QC certified" opinions even don't consider Ramsay at all, or (more likely) add a big caveat in the small print to their opinion.

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        #13
        Ramsay principal was discussed in Rangers and HMRC lost on that point. In Boyle Ramsay got applied because it was very poorly implemented. FX never existed and exchange rate was artificial. In most loan scheme proper loan were given which have legal implications - ever more strictly than in Rangers. U can ready clearly in Rangers decision.

        I am least worried about Ramsay principal for my EBT based scheme. Only and only ToAA is what I see HMRC has a chance at and Fisher case has helped them. Fingers crossed for fishers case in UTT.

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          #14
          Originally posted by centurian View Post
          My answer would have been yes, but Rob's answer is clearly more informed.

          I am surprised HMRC haven't applied the Ramsay Principle more often, because it looks like it can be used to take down many of the schemes that have cropped up. Maybe it adds a lot of complexity to the case and up until recently, HMRC just couldn't be arsed.



          Extra emphasis on the word "appear" - because if it fails the Ramsay principle - it was never really legal to begin with.

          And you can bet that almost all "QC certified" opinions even don't consider Ramsay at all, or (more likely) add a big caveat in the small print to their opinion.
          I've said it before and repeat it now.

          A QC opinion means ABSOLTELY NOTHING until a judge agrees with it. Don't be fooled into thinking that it lends credence or credibility to a scheme.

          I'll do a piece on Ramsay in the same vein as Fisher.

          Comment


            #15
            Originally posted by Rob79 View Post
            I've said it before and repeat it now.

            A QC opinion means ABSOLTELY NOTHING until a judge agrees with it. Don't be fooled into thinking that it lends credence or credibility to a scheme.

            I'll do a piece on Ramsay in the same vein as Fisher.
            Agreed, but the same can be said for HMRC PR stunts.

            Comment


              #16
              Originally posted by horrada View Post
              Agreed, but the same can be said for HMRC PR stunts.
              Exactly😀

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