Tag Archives: Tax Enquiry

LTAG High Court Judgement

The High Court judgement was handed down on 4th July, and it was unfavourable.

We were not surprised by this but were surprised that the basis of the judgement had significant errors of both law and interpretation of recent case law. We spent considerable time, both in writing and orally at the hearing, clarifying to the Judge all the relevant law and cases.  Almost all of this was seemingly ignored.

Our Counsel Tom Chacko immediately submitted an application to the Judge for permission to appeal.

The preliminary appeal is served on the Judge who heard the claim and he is under obligation to respond quickly. Unsurprisingly, he has rejected the preliminary appeal. We will now issue a detailed appeal to the Court of Appeal by July 25th.

We would expect a response from the Court of Appeal in early Autumn given there is a summer break.

Overall, we believe that our claim remains as before since the High Court Judge has, inexplicably, ignored significant parts of the law. In effect, we have passed stage 1 of the legal process and should we get leave to appeal will be able to present the claim to 3 Judges one of who we would hope will be knowledgeable in tax.

It is our view that Mr Lewis has seriously misinterpreted the scope and purpose of Section 59B TMA, and instead decided that Section 59B permits the recovery of over-repayments whether they derive from carry backs or sideways loss claims. He thought that the De Silva decision brought a carry-back claim within its scope and, as regards Ranjit-Singh’s sideways claim, that the HMRC amendment letter sent to her did what Section 59B and the De Silva decision contemplated.

This is a seriously flawed judgement. There is virtually no analysis of the application of De Silva as we had pleaded, and even less discussion of the Archer requirements. Mr Lewis failed to address the inapplicability of De Silva to sideways loss claims. This is perhaps not surprising; not only is Mr Lewis not tax-experienced, but we always said that our technical arguments need to be examined by more senior judges.

Since the appeal application has been refused by Mr Lewis, Tom Chacko is preparing a direct application to the Court of Appeal for consent, and this will be submitted by the deadline of July 25th.

De Silva Decision due on Wednesday 15th, Nov 2017

The De Silva claim against HMRC that was heard at the Supreme Court on June 22nd will receive its judgement on Wednesday Nov 15th.

The LTAG team will carefully review this judgement to determine its implications, especially on those who have made carry back claims, and those who are part of S54 agreements with HMRC. We will also review what the judgement may imply for HMRC’s powers of recovery.

To the best of our knowledge there are no other cases in the High Court, Court of Appeal or Supreme Court diaries relating to HMRC’s powers of recovery.  The LTAG case will therefore be the deciding case in regard of what HMRC needs to lawfully do in order to recover repayments made to taxpayers.

What types of HMRC enquiries are there and how do they affect LTAG membership?

LTAG will claim that HMRC are out of time to recoup repayments made to taxpayers that meet certain criteria.  One of those criteria is that a taxpayers cannot have an open enquiry into their affairs for the relevant tax year that relief was claimed in.

This raises the question as to what is an open enquiry?

HMRC as a matter of course will typically have raised enquiries into all tax solutions and will typically have raised a Section 12AC enquiry to do so.  Often solutions were structured as LLPs.  S 12AC enquiries deem that all partners in the LLP are at the same time under enquiry.  On closure of enquiries into the LLP, typically under S28A, those deemed partners enquiries are settled at the partner level by amendments being issued under s 28B.

For the claim being put forward by LTAG clients have standing to join the action if they received solely a s 12AC enquiry.

If on the other hand they received an enquiry into their own personal affairs under s 9A unless that enquiry has been closed then HMRC are still in time to recoup repayments made to taxpayers.

A little complex but in essence if it was only the taxpayers solution that was enquired into and that solution enquiry is closed then taxpayers can join LTAG.