The LTAG hearing was held yesterday, June 21st 2018, at Court 2 of the High Court on the Strand. The Judge was Justice Lewis.
Our claim was put forward by Thomas Chacko, Pump Court, and was defended for HMRC by Tim Brennan of Deveraux Chambers.
In attendance from LTAG was Albert May, David Rangeley and our legal advisor Simon Gough. There were also a small number of LTAG members who observed the hearing.
Also in attendance were two juniors from the Law Commission. We suspect this may be because there may be an intention to review the law. The Law Commission being the statutory independent body created by the Law Commissions Act 1965 to keep the law of England and Wales under review and to recommend reform where it is needed.
We were able to finalise the hearing within the day and did not need to extend to the second day.
Points that were discussed included:
- Relevant legislation as to what needs to be in a tax return and what comprises a self-assessment
- Relevant legislation in regard of personal and partnership enquiries
- Relevant legislation for closure of partnership and personal enquiries
- Deemed enquiries are closed when a partnership enquiry is closed – following from a recent ruling
- Lawful opportunities for HMRC to make amendments and what should be amended
- The difference between same year and multi-year claims
- The nature of a repayment and the fact that it is not reflected at all on same year or prior year returns. Therefore, needing some mechanism for it to be recovered. Prior to De Silva we have argued that this was only S30. After DeSilva we argued S30 still applies to same year claims and there needs to be clear detail from HMRC as to any change required that complies with the ruling from DeSilva – this not being the case for the two lead claimants.
- The precise correspondence sent to the two lead claimants by HMRC and whether or not that correspondence created a legal obligation to make repayments back to HMRC.
- The application of a Court of Appeal judgement, Archer vs HMRC, that states the taxpayer has to be told clearly and precisely what he needs to do
- The difficulty in applying the DeSilva judgement in regard of recovering repayments made
- Relevant legislation, in brief, to explore whether repayments were made provisionally
- Relevant legislation that allows HMRC to amend losses and to then automatically request those reductions to be recovered
- Possibilities for the Court or HMRC to quash, using S114, prior letters sent to taxpayers and to issue revised letters
- The potential use by HMRC, discussed in passing, of S31.2c
The court has a summer break for August and September. We therefore expect to receive a judgement sometime mid-October to mid-November.