• Visitors can check out the Forum FAQ by clicking this link. You have to register before you can post: click the REGISTER link above to proceed. To start viewing messages, select the forum that you want to visit from the selection below. View our Forum Privacy Policy.
  • Want to receive the latest contracting news and advice straight to your inbox? Sign up to the ContractorUK newsletter here. Every sign up will also be entered into a draw to WIN £100 Amazon vouchers!

You are not logged in or you do not have permission to access this page. This could be due to one of several reasons:

  • You are not logged in. If you are already registered, fill in the form below to log in, or follow the "Sign Up" link to register a new account.
  • You may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?
  • If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.

Previously on "GAAR Pooling notices - Remuneration Trusts"

Collapse

  • webberg
    replied
    Originally posted by Not Losing Any Sleep
    "It is also worth pointing out that so far, known earlier uses of similar schemes have not attracted pooling notices. That may be because the use of GAAR is limited to schemes current after July 2013 and the penalty provisions only from 2016".


    Hi Webberg, have you seen GAAR applied to any pre-2013 schemes?
    No - and I'm not expecting to given the fact that the rules were not around pre 2013.

    Leave a comment:


  • Saleos
    replied
    GAAR Panel decision

    The GAAR panel decision alluded to above is here: https://assets.publishing.service.go...ndividuals.pdf

    Looks very much like a variation of the PBW scheme that is older than the hills.

    The idea that this could be successfully litigated, whilst ignoring the risk of a 60% penalty (if entered into after 15.9.20) for failing to take corrective action required by a counter action notice, or tax geared penalties for deliberate conduct, is for the birds.

    If you are in receipt of a GAAR Counteraction notice ensure that you take proper advice.

    Leave a comment:


  • AC0
    replied
    Thanks for taking the time to explain this Graham, I really appreciate it.

    There's no way I can pay what HMRC are likely to demand but for now I guess I just wait.

    Leave a comment:


  • webberg
    replied
    Originally posted by AC0 View Post
    I'm aware of some of the ongoing litigation, but didn't think anything short of a JR + injunction can stop HMRC from enforcing an APN.

    My understanding of the likely process is :
    1) APN issued
    2) We make 'representations' to HMRC (since there's no right of appeal)
    3) HMRC reject the representations (or tweak and re-issue the APN), and if you don't pay, throw in a CCJ for good measure.
    4) The only option open is applying for a JR + injunction

    Can you please help me understand where litigation fits into this scenario? Does WTTs litigation already involve JRs that will cover the impending renumeration trust APNs?

    Thanks again
    You are straying off topic here but I'll go along with it one time.

    Your process description is correct aside from the "throw in a CCJ" point. That is not inevitable and with proper management will not happen.

    There have been many JRs against APNs and whilst I know that there is at least one more outstanding, to the best of my knowledge none of them have succeeded in preventing a validly issued APN from being pursued.

    Some APNs were issued and withdrawn because they failed to meet one or more of the conditions, but in the overall scheme of things, these were a small element of the total population.

    Our litigation, as with all other tax litigation being executed at the moment, is NOT going to a Judicial Review. That is a legal process that considers the decisions made by a public body and whether they are reasonable. Our litigation - and all others - are questioning whether HMRC has interpreted the tax legislation correctly. Very different legal concepts.

    JR does have a part to play, but later.

    If your question is really "Will litigation against HMRC prevent them from collecting the APN?" the answer is "no".

    If you want a litigation to delay an APN, then there is at least one still running and yet to be heard.

    I'm afraid that we have never seen the purpose in spending several hundreds or thousands of pounds in a legal action to create a delay in agreeing payment terms.

    If you fear the APN because of inability to pay, HMRC has been in the past insisting upon a maximum 24 month time to pay. They may be looking at that policy to extend it - who knows?

    If you are unable to pay an APN within whatever time to pay can be agreed, then HMRC does have powers to apply to a Court to seek some form of insolvency order. It's a lot less common than you think.

    Usually a magistrate faced with a taxpayer who has made a reasonable offer and HMRC who - if insolvency is granted - will collect just a fraction of the amount, will favour the taxpayer. Insolvency is a permanent answer to a temporary problem and worse, perhaps a problem that does not exist if the tax is found to be not due. Magistrates have shown themselves to be reluctant to take steps.

    No guarantee of course and every case is different.

    But attention has swung to the remuneration trust schemes (partly I suspect because of the names behind them) and management of the APN is required before the litigation processes against the actual liability (or not) will take effect.

    Leave a comment:


  • AC0
    replied
    I'm aware of some of the ongoing litigation, but didn't think anything short of a JR + injunction can stop HMRC from enforcing an APN.

    My understanding of the likely process is :
    1) APN issued
    2) We make 'representations' to HMRC (since there's no right of appeal)
    3) HMRC reject the representations (or tweak and re-issue the APN), and if you don't pay, throw in a CCJ for good measure.
    4) The only option open is applying for a JR + injunction

    Can you please help me understand where litigation fits into this scenario? Does WTTs litigation already involve JRs that will cover the impending renumeration trust APNs?

    Thanks again
    Last edited by AC0; 17 November 2020, 10:48. Reason: Typo

    Leave a comment:


  • webberg
    replied
    Originally posted by AC0 View Post
    Thanks Graham,

    It seems there's very little that can be done then since litigation will be super expensive once you factor in appeals etc

    Depressing.
    Well bearing in mind that there are at least three litigations under way and many more waiting for dates in Tribunal, including ours, you could do worse than explore what those groups are doing.

    Leave a comment:


  • AC0
    replied
    Thanks Graham,

    It seems there's very little that can be done then since litigation will be super expensive once you factor in appeals etc

    Depressing.

    Leave a comment:


  • webberg
    replied
    Originally posted by AC0 View Post
    Hi Webberg,

    I assume anyone who gets a pooling notice is highly likely to also get a counteraction notice & APN.

    As the APN can't be challenged, are there any real defences to the process (short if a JR)?

    Thanks
    Correct that an APN is difficult to challenge - there have been many cases in the Courts and aside from HMRC being told to follow their own rules, none have made much difference.

    A GAAR pooling and counteraction notice can be challenged but not appealed. Usually HMRC will make amendments to assessments etc as part of the process and those can be appealed. If they arrive with an APN, you have to look to a different way of having the GAAR notices set aside.

    That will begin with exchanges of views and will almost inevitably end in some form of litigation as Mr Reasonable packed his bags and left HMRC some time ago.

    Leave a comment:


  • AC0
    replied
    Hi Webberg,

    I assume anyone who gets a pooling notice is highly likely to also get a counteraction notice & APN.

    As the APN can't be challenged, are there any real defences to the process (short if a JR)?

    Thanks

    Leave a comment:


  • webberg
    replied
    Originally posted by Simon100 View Post
    Webberg, do you think schemes pre December 2010 will fall into this? Even ones that have long since vanished?
    GAAR applies only from July 2013.

    Leave a comment:


  • webberg
    replied
    Originally posted by Delendog View Post
    Ok thanks - so it is also a way for HMRC to issue an APN when a scheme isn't DOTAS, under GAAR can an APN be issued on a closed year?
    Yes.

    The pooling notice gives you the chance to take action to "correct" your reported position.

    If you do not then chances are you will get a counter action notice which will arrive with an APN.

    Leave a comment:


  • Simon100
    replied
    Webberg, do you think schemes pre December 2010 will fall into this? Even ones that have long since vanished?

    Leave a comment:


  • Delendog
    replied
    Originally posted by webberg View Post
    I have no idea but I suspect HMRC will see the schemes being subject to loan charge AND GAAR.

    Don't forget, the loan charge is NOT settlement. Even if paid, it is still necessary to agree the position for each year which has an open enquiry.

    (Closed years post December 2010 are subject to loan charge).

    GAAR is an alternative way to agree the tax due in each year money was received.
    Ok thanks - so it is also a way for HMRC to issue an APN when a scheme isn't DOTAS, under GAAR can an APN be issued on a closed year?

    Leave a comment:


  • webberg
    replied
    Originally posted by Delendog View Post
    So does this mean that HMRC don't see these schemes as being caught by the Loan Charge?
    I have no idea but I suspect HMRC will see the schemes being subject to loan charge AND GAAR.

    Don't forget, the loan charge is NOT settlement. Even if paid, it is still necessary to agree the position for each year which has an open enquiry.

    (Closed years post December 2010 are subject to loan charge).

    GAAR is an alternative way to agree the tax due in each year money was received.

    Leave a comment:


  • Delendog
    replied
    Originally posted by webberg View Post
    You may still get a letter but I think you should have no worries over this as you have settled.

    So does this mean that HMRC don't see these schemes as being caught by the Loan Charge?

    Leave a comment:

Working...
X