BN66 - the road to Judicial Review

[Tax_shouldnt_be_taxing]

Last post for me tonight before I rest my tired eyes.
Please someone correct me if I am wrong, but I think the gist of the argument is:

HMRC have basically said bollox to the scheme, we dont care if it works or not. It's a fair cop guv, this isn't a clarification of the Padmore law, its retrospection. But we are going to tax you retrospectively anyway.

They have told the Judge that the will of parliament is more important than a a court and European law doesnt necessarily say they cant tax us. It just says such a measure should be proportionate and of "fair balance" in relation to what has occurred.

Singh has cobbled together various cases from Strasbourg to argue this point.

It sounds very un-convincing to me, but who knows how a Judge's mind works. I guess we will know more tomorrow.

Sounds more like the recent EU ruling on the Terrorism Act. European law can say what it wants be Parliament will do as it pleases. Well the Human Rights Act passed by Parliament binds itself to ECHR and I doubt any Judge will look too favourably on Parliament simply flouting one of the 3 pillars of our democracy which our in order:

1. Monarchy (MP's swear an Oath of Allegiance to that)
2. The Executive (to make laws)
3. The Judiciary (to rule on conflicts between law and the Equity of Law)

(3) is there to govern conflict on behalf of the people
(1) is to maintain a Constitution (State opening of Parliament, dissolve parliament and Royal Assent)
(2) is to do as it pleases but held to account by (1) and (3). This is called Democracy. I presume it is still part of our way of life. Tomorrow we may find out.

Thanks Santa. Now go get the "Elv(ins)" to sooth you tired mind from your great work today.

Catch up tomorrow.

[TaxDude]

Thanks Everyone

All - thanks to all you folk that attended today and to Santa and everyone else for the updates. Roll on to Day 2 !

[OnYourBikeGB]

Last post for me tonight before I rest my tired eyes.
Please someone correct me if I am wrong, but I think the gist of the argument is:

HMRC have basically said bollox to the scheme, we dont care if it works or not. It's a fair cop guv, this isn't a clarification of the Padmore law, its retrospection. But we are going to tax you retrospectively anyway.

They have told the Judge that the will of parliament is more important than a a court and European law doesnt necessarily say they cant tax us. It just says such a measure should be proportionate and of "fair balance" in relation to what has occurred.

Singh has cobbled together various cases from Strasbourg to argue this point.

It sounds very un-convincing to me, but who knows how a Judge's mind works. I guess we will know more tomorrow.

It does indeed sound like they have accepted their original defense has been completely demolished and they are now coming back with a higher risk strategy. Personally, if I wanted to get judge on my side, I wouldn't be waving two fingers at everything he believes in and telling him he'll do as I tell him to. Smacks of desperation to me.

As for the will of Parliament, there's evidence that they were indeed misled. And what sort of constitution, written or otherwise, would place all power in a single institution? If it was down to the will of parliament, we wouldn't have had the expenses scandal. Parliament represents the people not themselves. And it is the courts that are there to protect our rights.

This is HMRC saying through their political muppets - sorry, I mean masters - you will do what you are told, you have no rights. Unfortunately there's more kremlin than kermit about this.

[Tax_shouldnt_be_taxing]

History of this farce

1996 Selft Assessment Introduced
2002 SA returns declare tax relief to HMRC
2002 - 2007 HMRC reckon the scheme does not work but can't say why.
2002 - 2007 HMRC state they may litigate but never do.
2007 HMRC decide the scheme does not work based on 1987 legislation.
2008 HMRC inform MTM that the scheme does not work based on 1987 legislation.
2008 Budget BN66 "clearly" states that the scheme does not work and never did in line with 1987 legislation.
2010 JR hearing, HMRC appear to drop the "Padmore" line and infer that the will of Parliament overrules the courts and ECHR and that they can tax retrospectively if Parliament so wishes based on a "fair and proportionate" basis. Well I'm glad that HMRC are being "consistent" in their approach to this matter...

I wonder what the Parliamentary debates as documented by Hansard would look like if HMT/HMRC had not banged on about 1987 at the time? Probably we would not be here now. But all that is in the past, or it's retrospective!

Hmmm, anyone think that the Soviet Union has just come back into existence? Read the Parliament Act 1911 to see how Parliament has moved towards doing as it pleases (or rather the House of Commons).

Time for HMRC to finally decide why they can tax this scheme?

2010 - 2002 = 8 years / 3 positions = 2.667 years between changes in stance. Wow, now that's really consistent! And the populace is expected to have certainty in the tax system. My call-sign seem more at odds with this than ever before...

[Tax_shouldnt_be_taxing]

JCHR letter to Stephen Timms

All,

Do you recall the JCHR writing to Stephen Timms and his reply to them stating that due to the pending JR he could not offer any input?

Well, if the observations from today are right, then his statement seems at odds since it might be the case that whatever the outcome of the JR, HMRC may state that the will of Parliament overrides the ECHR and EU law generally and that retrospection can be applied by Parliament if it so wishes.

Well, did he have that position when he replied to the JCHR? If so, then why could he not tell the JCHR what Parliament could do there and then? Or has his/HMRC/HMT's position changed since his letter? It could seem that the JR may have no traction on what "Parliament" can do and if so would be in conflict with his reference to the JR in his letter.

Surely, he would not use the JR as a reason of non-disclosure if he believed that the JR would not get in the way of the will of Parliament. Ouch!

I wonder what the Judge at the JR would make of this idea? You know, Timms respecting the importance of the JR as a reason to say nowt when the JR won't stop Parliament doing as it deems fit anyway... Interesting.

Anyone who thinks this whole saga is not in the public interest, think again - it's Election Year!

[Tynos]

Thanks Santa, for the coverage.
Plus thanks to Taxing for the analysis.
I've always been confident we'd beat HMRC off "eventually",
and I'm feeling we're a step closer today.

Tynos.

[Toocan]

Singh said his question to the court was to assess compatibility with Human Rights Legislation, not the length of time involved in pursuing taxpayers. Also whether “fair balance” has been struck even though they didn’t go to the Special Commisioners.

If HMRC have given up the idea that all that s.58 did was to clarify the 1987 law, then they are pretty close to admitting that they have deceived Parliament. They justified s.58 on the basis that it was not more than a clarification.

If HMRC have deceived Parliament then the “will of Parliament” comes into question.

With all the other legal documents that we’ve seen, the second day should be interesting…

[smalldog]

ive been thinking that if Padmore doesnt apply to us, regadless of the outcome of the JR Cant we now say that the legislation doesnt affect us? I thought the whole issue was the wording relating to the 1987 rule, and if a high court judge has said it doesnt apply havent we won anyway???

[swede]

ive been thinking that if Padmore doesnt apply to us, regadless of the outcome of the JR Cant we now say that the legislation doesnt affect us? I thought the whole issue was the wording relating to the 1987 rule, and if a high court judge has said it doesnt apply havent we won anyway???

that sounds like a very valid point. grown-ups?

[deckster]

ive been thinking that if Padmore doesnt apply to us, regadless of the outcome of the JR Cant we now say that the legislation doesnt affect us? I thought the whole issue was the wording relating to the 1987 rule, and if a high court judge has said it doesnt apply havent we won anyway???

No, it was always patently clear to a blind dog that that 1987 ruling didn't apply; the issue was the HMRC claimed that it did, and that BN66 was merely a 'clarification' rather than a change in the law. The judge has cleared that one up and so HMRC now have to justify 'changing' rather than 'clarifying' the law.

Whether this actually makes any difference is up for the judge to decide.