Originally posted by eek
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Earlier decisions don't "narrow down the final arguments": each Court decides the application of the law based on the facts of the case. A higher court binds a lower one unless the facts can be distinguished. The "arguments" are really no more than how each sides presents its case on how the law applies. Once the Court gives its decision that is the law until or unless it is overturned by a higher authority.
Put simply you might argue something is red. I might argue it is blue. We might both give long and expert argument on why we believe that and each refer to extensive case law (often different paras within the same case, or take a different view of what a case meant) but ultimately the Court's job is to tell us both what colour that thing is. If it says it is purple it's purple until a higher Court says otherwise. Now someone else might think - well I would have quoted different cases, or argued the law differently, but that doesn't matter. It's purple until a higher court says otherwise.
Look at the facts as decided by the FTT in Hoey. The FTT held that Mr Hoey did not have a tax avoidance motive AND that the income of the person abroad (for ToAA) purposes was nil. Contrast the latter with Higgs & Lancashire for example. These were both helpful. It is hard to see what fact pattern might be better. Perhaps you could enlighten us all?
And on the relevant points of law it is imperative that everyone understands that if HMRC prevails on s684(7A) ITEPA it doesn't matter how you present the arguments in the FTT that HMRC doesn't have that discretion; what polish you add, or new gloss you might put on it, the point of law will have been decided by higher authority. The FTT wouldn't be able to reach a different conclusion. Another UT would find it persuasive. So you're left with needing to take a case to at least the Court of Appeal. And absent an appeal in Hoey (if HMRC win) you'd have a Follower Notice long before you/BG get a case anywhere near the Court of Appeal.
Furthermore, if the discretion exists as HMRC argue that not only scuppers pre-DR cases but sinks the BG post DR case before it even starts.
There is, after all, little point in arguing (however it is argued) that the sums received were earnings all along and should have been taxed by the employers (as BG's 'resolution strategy' very explicitly says it relies) if HMRC simply has the discretion to dispense with the PAYE code (as it has tried in Hoey) to collect those sums from the employee anyway. This point really isn't that complex. You must be able to see it, even through rose tinted spectacles?
So whatever magic beans are being hidden from view for apparent fear that someone else might "take the glory" now is not the time to keep them in the shade but to let them into the sunlight and water them. If they exist.
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