HMRC Consultative Document - marketed tax avoidance schemes

[honeyridges]

Possession is nine tenths of the law

A couple of other points of note to me:

"There is no inherent presumption that tax under dispute should sit with the taxpayer rather than the Exchequer."

"In a property dispute (whether real or personal), in the absence of clear and compelling testimony or documentation to the contrary, the person in actual, custodial possession of the property is presumed to be the rightful owner... The shirt or blouse you are currently wearing is presumed to be yours, unless someone can prove that it is not."
Possession is nine-tenths of the law - Wikipedia, the free encyclopedia

[DonkeyRhubarb]

New template letter to send to your MP

http://notoretrotax.org.uk/public-do...May%202014.doc

[Living life on the Edge]

"In a property dispute (whether real or personal), in the absence of clear and compelling testimony or documentation to the contrary, the person in actual, custodial possession of the property is presumed to be the rightful owner... The shirt or blouse you are currently wearing is presumed to be yours, unless someone can prove that it is not."
Possession is nine-tenths of the law - Wikipedia, the free encyclopedia

I highlighted the statement as I feel it would be just as possible to make the counter argument to the one being made by HMRC, reflecting the current situation.

[LandRover]

Lack of influence!

What I find a huge surprise is the lack of influence from any of the Accountancy/Lawyers industry heavyweights. They have simply been ignored and brushed aside. Nothing appears to have been watered down in the Finance Bill. APNs are here and will be applied retrospectively...so the tax professionals have been out played by Gauke. Depressing and also lesson learnt for many, that so called professionals ultimately talk the talk but can't deliver any influence

[malvolio]

What I find a huge surprise is the lack of influence from any of the Accountancy/Lawyers industry heavyweights. They have simply been ignored and brushed aside. Nothing appears to have been watered down in the Finance Bill. APNs are here and will be applied retrospectively...so the tax professionals have been out played by Gauke. Depressing and also lesson learnt for many, that so called professionals ultimately talk the talk but can't deliver any influence

It's not about influence, or even being outplayed. Government has to consult on new legislation it's the law. Nobody said that it then had to listen to what was said. If HMG has a clear objective - in this case preventing potentially owed tax monies going walkies while the case is examined and it's perfectly reasonable to make that case - and the consultation doesn't either give a better solution or an incontrovertible reason not to go ahead, then go ahead they will.

And be a little more precise. The case that resulted in the potential tax bills has an element of retrospection (but only if you also ignore the 2009 Finance Bill's provision for going back to December 2008 when looking at EBTs, avoidance schemes and similar, of course) but APNs are new legislation.

[DonkeyRhubarb]

What I find a huge surprise is the lack of influence from any of the Accountancy/Lawyers industry heavyweights. They have simply been ignored and brushed aside. Nothing appears to have been watered down in the Finance Bill. APNs are here and will be applied retrospectively...so the tax professionals have been out played by Gauke. Depressing and also lesson learnt for many, that so called professionals ultimately talk the talk but can't deliver any influence

If the Government wants something they virtually always get it. They will have known beforehand that it would come in for a lot of flak but it was already a done deal as far as they were concerned. The so-called consultation was nothing more than window dressing.

[Rob79]

I would agree with Malvolio.

The tax/accounting/legal profession exists to apply the law, not make it.

HMRC has fought a very clever campaign. First they won the hearts and minds of the public (and importantly the press) by running their "tax must be fair" argument. Then they launch a series of increasingly draconian measures which to date have seen the APN process with us. Next is the ability to remove cash directly from bank accounts for "that very small minority" of persistent non payers. Any bets on how long it is before we see mission creep on that one?

All of this has been done in the face of severe criticism from the professional bodies because HMRC just don't care. Do you think that the Hodge attack on accounting firms cosying up to those who write legislation so that they can then undermine it (unproven and probably incorrect) was not a planted argument?

Conclusion: bit harsh to blame the professions who have been just as shafted (although that won't stop them charging fees for applying the new rules).

[varunksingh]

APNs are new and legislation is retrospective and done without paying any attention to consultation. I am happy as long as courts continue to look at everything through the lens of law. HMG and HMRC can do what they wish until then.

My scheme promoter is going to courts - we are in the process of filing in for FTT and in courts we will see them. Rangers was a fifth defeat in a row against EBTs for HMRC. HMRC can just stop all this tulip now but they won't and courts will set them right. Justice will prevail.

Immediate future is dark and I don't know how I will manage to pay when APNs will arrive. But saving and working hard to have as much cash as possible.

[malvolio]

APNs are new and legislation is retrospective and done without paying any attention to consultation. I am happy as long as courts continue to look at everything through the lens of law. HMG and HMRC can do what they wish until then.

My scheme promoter is going to courts - we are in the process of filing in for FTT and in courts we will see them. Rangers was a fifth defeat in a row against EBTs for HMRC. HMRC can just stop all this tulip now but they won't and courts will set them right. Justice will prevail.

Immediate future is dark and I don't know how I will manage to pay when APNs will arrive. But saving and working hard to have as much cash as possible.

I appreciate you are in a very difficult place at the moment and should keep fighting your corner but a dose of reality wouldn't go amiss sometimes. Your biggest problem is that 99% of the UK don't actually care very much about highly paid individuals being done for extra tax, rightly or wrongly. It doesn't help when seriously wealthy victims merely say "Oops, sorry" and write out a cheque.

[Rob79]

Be aware that HMG maintain that APN's are not retrospective legislation. They say that the tax is disputed and until a court says otherwise these is no reason not to collect it. The law has not changed to make the tax any more or less due, but HMRC/HMG say that by them holding it, there is more incentive for the taxpayer to engage.

Given that HMRC are holding back on cases where there is prospect of them losing it's hardly encouraging that they've convinced HMG that it's always the taxpayer causing the delay.

Remember that the Courts interpret the will of Parliament. If they decide that Parliament never meant for EBT's etc to be used as they have been, then there is good judicial doctrine to apply a "purposive" interpretation which will take into account what Parliament intended, even if the draftsman has been clumsy in his words.

Courts cannot make law. They cannot unmake a bad law. Look at recent decisions to see the knots they get into trying to strike down any scheme that involves paying less than the elusive "fair" amount of tax.

Also be prepared for a long fight. Getting to FTT from a standing start is perhaps 18 months minimum. From there UTT another 18 months, CoA perhaps a year, Supreme Court 18 months. Minimum 5 and a half years. Cost is perhaps £1m to go all the way.

All of this will also not stop the APN arriving. Dark days indeed and no immediate signs of any relief.