 |
|
| CURRENT SECTION :: IR35 / IR591 | UK's most visited IT Contractor Site - 250k unique visitors March 2008 |
|
 |
Morning Session The first session of Synaptek vs Inspector of Taxes was from 10.30am to 1.00pm, heard by Mr Justice Hart, at the High Court, in the Royal Courts of Justice. The court heard arguments from both sides on the question of whether the case should be remitted back to the Commissioners for further findings of fact. The judge has said he will announce his decision on this question at 2.00pm. If the case is not remitted, the full appeal will be heard this afternoon. Conrad McDonnell, counsel for Synaptek, argued that the case should be remitted on two grounds A) there was an error over the dates. EDS had taken over the contract from ITSA only during the final 2 months of the six month period. B) the commissioners had failed to make findings on many important points that had been presented to them, including points relating to control and Mutuality of obligation. The commissioners should make findings of fact on all these issues, and then the case should come back to the High Court. Clive Sheldon for the Revenue argued that Stutchbury had had ample Opportunity to make representations. He had corresponded with the commissioners about the stated case, and had asked for many of the points raised to be included. If they were not included, it was because the commissioners did not find them as facts, or did not think them relevant to their decision. During his submission, McDonnell made the point that the commissioners had found Stutchbury to be “in business on his own account” and that being the case, the burden must be on the revenue to show that this particular engagement was separate from the business he was engaged in. Something “pretty spectacular” would be needed to make the case. McDonnell quoted cases including Davies v Braithwaite, Market Investigations, and Mr Justice Burton in the PCG judicial review of IR35. Mr Justice Hart gave little away, but did remark that (reading the papers before The case) he had identified that Mutuality of Obligation could be a central issue. He also agreed that “we have no idea at all what the process of reasoning is” behind the commissioners decision. If the case is remitted back to the commissioners, the afternoon will probably be taken up with procedural issues. Alternatively, the judge may think he has sufficient evidence before him to hear the full appeal this afternoon. Afternoon Session At 2.00pm, Mr Justice Hart excercised his preroative to do the unexpected. He said he would neither acceed to the application, made on behalf of Synaptek, to remit back to the commissioners, but nor would he dismiss it. He would not refer back on the question of the dates, since counsel for the Revenue accepted these had been wrong there was no need. But on the other issues, he needed to hear the detailed arguments of the appeal before he could decide if it was appropriate to refer to the commissioners for further findings of fact, to submit the case to an entirely new set of commissioners, or whether he would be able to decide the case. Accordingly, Conrad McDonnell QC for Synaptek began to present his case. He went through the contract between Synaptek and NESCO clause by clause, pointing out the lack of control, MOO and the substitution clause; concluding "there is just nothing here to indicate employment. On the contrary, everything you look at indicates self-employment". He referred again to Davis vs Braithwaite, and Market Investigations. At 4.30pm the court adjourned. The case will recommence at 10.30am tomorrow (28th February) morning. Counsel for Synaptec will finish his case, and then the Revenue will respond. The case is expected to be finished round about lunch time. All options are still open. The case may be referred back for new findings of fact, referred to new commissioners for a fresh hearing, or Justice Hart may rule on the case. If he does so, he is most likely to reserve judgement, and had down a written judgement in several weeks time. Dave Smith of Accountax, who has been part of the PCG's team handling this case from its early stages commented on the first days events: "Many of the contentious IR35 issues, that remain unresolved are being aired. Whatever the outcome of the case, some useful principles are likely to be laid down. I look forward to the judgement with enormous interest". Feb 27, 2003 Email this article Printer friendly page Previous Page
|
|
  |
||||||||||||||||||||||||
| All content © Contractor UK Limited | [Register for News Letter] | [Privacy Statement] | [Terms of Use] | [Top of Page] |