Hoey - Court of Appeal legal fees

[dammit chloe]

IIRC UTT funding was raised in advance and they weren't taking any new funding at the time. So I can see why that happened.

This is all about the inevitable appeal to SC or whatever. If Hoey win, HMRC appeal and there is no funding for it then everyone but HMRC loses by default and any future attempts at litigation will likely be hamstrung by the verdict.

That is my understanding of the situation. I am no longer subject to Loan Charge due to being pre-2010 and closed years but still hope that others can be helped and try and do what I can. Unfortunately it can be hard to get through the various BS thrown around and enmity between factions and personalities involved.

[DealorNoDeal]

If Hoey win, HMRC appeal and there is no funding for it then everyone but HMRC loses by default...

Is that true? Surely a court wouldn't allow HMRC's appeal to succeed just because the other side can't afford legal representation?

Sadly, if recent history is anything to go by, I suspect it's more likely that Hoey will lose at the UTT. And, as you say, if there's no appeal then that may stuff Big Group et al.

[lowpaidworker]

Its one of those "too good to be" scenarios. So any PRE 2011 APN has to be paid back by HMRC?

In that case I would have thought many members on this forum would be all over this. And like I said the original pre 2011 BIG GROUP members will directly benefit, so am surprised how little traction this case has on the board here

When we say pre 2011 we are referring to the actual tax year and not when you settled?

Back then wasnt most of the APNs issued because HMRC defeated the scheme ? So are we saying this Hoey case goes back to Rangers and that win for HMRC (that was not such a great win) will actually force the judge to be exact who is actually liable for the tax and that HMRC arent actually allowed to transfer this to the employee under whatever rules they have?

If this is the case does this mean all those issued APNs off the back of Rangers in the event they win get their money back and to be even clearer those issued around 2015/16 for tax years pre Dec 2010 for EBTs

Or is the APNs for other types of schemes. Problem is its all so complicated that your average jo, like me, doesn't know if it covers every scheme pre dec 2010 or just some

[regron]

APN's were issued for the exact opposite. The schemes hadn't been defeated and it was a way for HMRC to get the money up front, until the case was decided in court.
Now the cynic would say that allowed HMRC to sit back and delay going to court.

When we say pre 2011 we are referring to the actual tax year and not when you settled?

Back then wasnt most of the APNs issued because HMRC defeated the scheme ? So are we saying this Hoey case goes back to Rangers and that win for HMRC (that was not such a great win) will actually force the judge to be exact who is actually liable for the tax and that HMRC arent actually allowed to transfer this to the employee under whatever rules they have?

If this is the case does this mean all those issued APNs off the back of Rangers in the event they win get their money back and to be even clearer those issued around 2015/16 for tax years pre Dec 2010 for EBTs

Or is the APNs for other types of schemes. Problem is its all so complicated that your average jo, like me, doesn't know if it covers every scheme pre dec 2010 or just some

[lowpaidworker]

APN's were issued for the exact opposite. The schemes hadn't been defeated and it was a way for HMRC to get the money up front, until the case was decided in court.
Now the cynic would say that allowed HMRC to sit back and delay going to court.

But to issue the APN to me they needed to transfer this from the employer to employee right (PAYE credit or whatever it is)? My APN was becasue the scheme was Dotas registered but I thought the driver was the Rangers case

[Saleos]

Clarity re Hoey appeal fund raiser & what it could mean for you

I understand there is uncertainty and scepticism about this, indeed me, so let me try, below, to be as clear and concise as possible about what "we" are looking to do and why. And most importantly why it could help many many more than just Mr Hoey.

Why is this important?


This litigation deals with PRE DR loans. Those received before 9 Dec 2010.

IF Mr Hoey wins HMRC would be unable to collect income tax from recipients of similar schemes (e.g. ASMG, ASIOM, Edge, GreebBay, AML (early years) Sanzar and so on - any employment based EBT loan scheme) using the PAYE code. HMRC can do so now only by exercising a claimed discretion under s684(7A) ITEPA 2003 (to remove a credit for the PAYE that ought to have been deducted by the employer/agency/end user (it matters not which)).

Further, the Transfer of Assets Abroad provisions (which would allow HMRC to collect tax directly from individuals without resorting to 'earnings' arguments) would not apply where the income of the person abroad is nil (as was held by the FTT in Hoey).

Hoey does [I]not [/I]cover any arguments re the possible application of Part 7A ITEPA 2003 (employment income through third parties) for POST DR years. The rules governing the transfer of liability for tax on earnings is very different under Part 7A. And of course the Loan Charge remains a huge barrier for those with Post DR loans. But nothing in Hoey prevents those arguments being run (by others).

However, IF Mr Hoey loses on the PAYE issues that WOULD scupper the proposed Big Group Strategy for post DR loans as arguments that the sums paid via these scheme were always 'general earnings' within s62 ITEPA 2003 would not assist. HMRC would simply be able to exercise its claimed discretion to remove any PAYE credit and to choose to collect that tax from the recipient (you) by dis-applying the PAYE regulations.


Legal Case so far

The first hearing was decided by the FTT in July 2019. The decision, facts, and arguments can be read here for those who wish to read the detail: Hoey v Revenue & Customs (PROCEDURE : INCOME TAX - IT contractor employed by offshore company) [2019] UKFTT 489 (TC) (29 July 2019)

Mr Hoey won on the ToAA point. HMRC on discovery & the PAYE issues (which the FTT largely decided it couldn't hear).

Both parties appealed.

The appeal was heard 22/23 & 26 October by the Upper Tribunal. Their decision is awaited. All costs for the FTT & UT (including provision for an adverse costs award) are covered.

Mr Hoey's legal team and I are cautiously optimistic of victory. But if we win HMRC are certain to appeal. And Mr Hoey wishes to appeal in the event that his appeal to the UT is unsuccessful.

The fund raising is solely to meet the legal costs of any onward appeal - initially to the Court of Appeal (and possibly the Supreme Court if necessary).

Any funds raised will be used only to pay Mr Hoey's legal team. I am assisting pro bono.

The current legal team is:

//www.rpc.co.uk/expertise/services/tax/

Rory Mullan | Specialist Tax Barrister | Tax Chambers

A full breakdown of the quote obtained for the anticipated appeal is accessible within the GoFundMe page here:

https://gf.me/u/y8isx5

The way in which GoFundMe is set up means that funds will be returned to contributors if no withdrawal is made by 16 March 2021. If we do not have sufficient funds to take an appeal, no withdrawal will be made and contributors will get their money back.

GoFundMe is NOT the main source of funding. Those who have funded Mr Hoey this far, via a formal Litigation Association (under which any remaining funds are returned to contributors pro rata) have been asked to contribute further.

But this is an opportunity for the thousands who have pre DR loans to help Mr Hoey and to help themselves.

What if Hoey wins?

IF Mr Hoey succeeds HMRC will not be able to use the PAYE system (or more accurately to disregard it) to collect tax from YOU. If, as was held by the FTT, the income of the person abroad is nil (because it was already income of Mr Hoey) then that is all you could be taxed on under the ToAA code - nil.

In those circumstances there would be no longer any 'disputed tax' and HMRC should refund sums paid against APNs.

What if Hoey fails?

HMRC will undoubtably use Hoey as a stick with which to force those with open Pre DR years to settle once and for all. Absent an appeal HMRC would have 12 months from the date of the final decision to issue Follower Notices which cannot be appealed and allow possible penalties of up to 50% of the disputed tax if they are ignored.

Moreover, for those who have pinned their hopes on the Big Group "resolution strategy" that strategy fails before it has started if HMRC is held to have their claimed discretion under s684(7A).

Why Hoey?

Hoey was not the first case to be heard by the FTT but it was the first to be decided. It is, because of the finding of fact re the income of the person abroad, in my view the BEST case. That finding sets it apart from Higgs & Lancashire (which both held that the ToAA provisions allowed HMRC to tax the individual directly).

Hoey is the only case to have reached the Upper Tribunal. Once that decision is released it will bind the FTT on points of law. That will tie the hands of those cases yet to start.

If Mr Hoey cannot afford legal representation (and he cannot without your help) HMRC would have an unopposed run at the Court of Appeal - only one side would be present to give their arguments - whichever side appeals.

Mr Hoey is not wealthy - he is a contractor like you, who will lose his home if he loses this case. He needs your help. If you have pre DR loans, you need your help! I am trying to help but need your support. Please share https://gf.me/u/y8isx5

Thank you for reading.

[QCApproved]

reply

There was a response from GW yday afternoon appears to have been withdrawn

[lowpaidworker]

I understand there is uncertainty and scepticism about this, indeed me, so let me try, below, to be as clear and concise as possible about what "we" are looking to do and why. And most importantly why it could help many many more than just Mr Hoey.

thank you very much for this. If Hoey does win then it does sound like this would very much help me with 2 years and 2 APNS issued whilst I was with Edge/Matupi.

I shall donate albeit a small sum as right now I am skint. However if anything changes financially for me I shall contribute more. If anything I want people to realise that HMRC don't make or interprete the law and whilst I dont understand tax law I know HMRC dont make the rules.

I wish you good luck and like others am surprised people impacted have not jumped on this. Edge I know had over 4500 EBT scheme members. It was probably these sort of numbers that convinced me not to bother with setting up a LTD back in 2009.

[lowpaidworker]

There was a response from GW yday afternoon appears to have been withdrawn

yes posted at 17:30 yesterday as it appeared as I was posting my comment. Its a shame Graham felt he needed to delete. I believe there should be no fighting as divide and conquer suits those with the deepest pockets and nor should he receive any backlash for his comments/views as they are massively appreciated by us all.

[eek]

yes posted at 17:30 yesterday as it appeared as I was posting my comment. Its a shame Graham felt he needed to delete. I believe there should be no fighting as divide and conquer suits those with the deepest pockets and nor should he receive any backlash for his comments/views as they are massively appreciated by us all.

Graham isn't spending his money, he is spending the money of others on their behalf. If he doesn't think the appeal will work for those members that's up to him.

By the sounds of the posts Graham made though I don't think he sees eye to eye with the lawyers working on this case.