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philinlondon
14th May 2015, 13:42
Hi all,

Here's an idea I have been thinking, so I do apologise for the below which can be wrong etc.

I am not a lawyer, but I had done 2 commercial law papers back in uni. One principle I've remembered from those courses was the "duty of care" in the common law. In the perspective of "tax avoidance schemes" where HMRC is contesting the legality of it, would it be fair to say the followings:


If the schemes were illegal and where the schemes had been isused DOTAS numbers, doesn't HMRC owes us a duty of care to investigate the legality of those schemes at the FIRST place before the numbers were issued?
Park the first point aside, most of us had done our tax returns of which we had clearly stated the DOTAS number, again shouldn't HMRC have the duty of care to notify us about the legality of those schemes in a more timely manner? (I would expand the argument of timely further below)
Due to the effect (I am sure most of us agrees here) with the lack of action from HRMC to STOP the schemes being marketed to us (maybe even with the FCA); don't they have a duty of care to look after the public where we are blindingly committed a crime? Which they said we have commit.
Since it took them over 2 years (and counting) where most of us might have put our lives on hold for this ticking time bomb, again don't they owe us a duty of care to rectify the situation much sooner (think about the people we are still waiting to be settled)? As we can't appeal now which I am sure it adds more duress to most of us, it has compounded the matter worse. I think the financial damage may outweigh the "cost" of the tax they claim we owe; if we can sue them successfully for their incompetence.


I found this old case of which it won at the Court of Appeal (Court finds taxpayers can sue HMRC for damages | AccountingWEB (http://www.accountingweb.co.uk/topic/tax/court-finds-taxpayers-can-sue-hmrc-damages)). The point which I am trying focus on is, the mistakes or inaction HMRC has on with us at the moment ties to the principle of duty of care where to put it bluntly, they have taken their sweet time and hold most of us in ransom/emotional prison; and to a lot of us the potential of bankruptcy because they didn't do their job properly or lack of duty of care.

Coming back to visit the timely concept, I just watched the news the government is being sued for delay (or inaction) for over a year for sickness/benefit approval Government in High Court over benefit payments delay - BBC News (http://www.bbc.co.uk/news/uk-32732763). This is over a yr (although I have to say our pain might not be as serious as some of them) we suffered quite a lot physiologically, for me is every bloody day!!!

Here's my thought, is a catch 22 for HRMC. IF they say what we had done is illegal in court in other cases. Can we argue they owe us a duty of care where they should have told us at the first place in a better timely manner as we didn't know we were committing a crime (although we were transparent in telling them via tax returns)? As a result we suffer duress and other mental (maybe physical) damaged because they lack their duty of care on us and to the public?

If my argument has any validity, I am sure we won't struggle to find victims!

Thoughts?

BrilloPad
14th May 2015, 13:47
I *think* the only people you cannot sue are social services.

Once s58 is sorted out I am up for suing them. But I am not keen on spending any money on lawyers!

EDIT : I am also wondering if WG from Montpelier will sue HMRC after their malicious prosecution of him last year.

BlueSharp
14th May 2015, 13:51
Interesting idea, I would like to know if any one has looked at estoppel on the same basis.

malvolio
14th May 2015, 13:56
HMRC do not have, and are specifically exempted from any duty of care.

DotasScandal
14th May 2015, 16:20
HMRC do not have, and are specifically exempted from any duty of care.

Unfortunately, correct! Let's say their duty of care is not towards the taxpayers....

philinlondon
14th May 2015, 17:23
Unfortunately, correct! Let's say their duty of care is not towards the taxpayers....

May I ask which case that was which set that precedence?The link I've provided ruled against HMRC

TheFaQQer
14th May 2015, 17:34
May I ask which case that was which set that precedence?The link I've provided ruled against HMRC

Revenue 'duty of care' isn't to all contractors :: Contractor UK (http://www.contractoruk.com/news/003541.html)

In that case, HMRC specifically created a duty of care to the one person. In yours, they haven't.

squirrel
14th May 2015, 19:01
We make a mistake and it's considered careless and can open up a whole can of whoopass on us. HMRC make a mistake and it's oops, ah well. Next...

I know this is going to sound ridiculous but as a sensible, reasonably intelligent human being I get so frustrated at this kind of tripe. I do not condone violence in any way but I can fully understand how some people can lose it.

philinlondon
14th May 2015, 20:56
Revenue 'duty of care' isn't to all contractors :: Contractor UK (http://www.contractoruk.com/news/003541.html)

In that case, HMRC specifically created a duty of care to the one person. In yours, they haven't.

Ok... but atleast it ruled in favor of the claimant, imagine we filed a seperate law suit against HMRC? I am sure they want to trial it as a whole, I strongly think this is our weapon where we can't appeal APN.

webberg
18th May 2015, 15:17
Hi all,

I found this old case of which it won at the Court of Appeal (Court finds taxpayers can sue HMRC for damages | AccountingWEB (http://www.accountingweb.co.uk/topic/tax/court-finds-taxpayers-can-sue-hmrc-damages)).

I've had a read of this.

Basically, a guy applied for a CIS tax exemption certificate for his one man company. The HMRC guy told him that they needed accounts (incorrectly) and forgot to get the forms signed (contrary to HMRC policy). To compound this, junior staff put an incorrect UTR on some form and also changed the application from one type of exemption certificate to another. All this led to a delay that resulted in the company going bust as it could not get work without a certificate.

He brought a case that the legislation in question established a public duty of care or failing that a private law duty of care arose.

The Court of Appeal rejected any notion that performance of a statutory duty established any public duty or care. Consequently for nearly all the grounds above there was no case.

In these circumstances however the judge found that an unnamed HMRC employee had taken upon themselves to complete the application form (and forge a signature probably) and that in doing so had acted on behalf of HMRC. This created a "vicarious liability" upon HMRC that allowed a private law duty of care to be established.

So in short, the guy had a claim ONLY because an HMRC employee acted outside their remit.

Where the situation is that HMRC is claiming that a scheme is ineffective (NOT illegal) and is making enquiries that a Judge would regard as reasonable in terms of scope and time, it's clear from this judgement that there is no claim.

I think a better line of argument might be legitimate expectation.

Proving that HMRC is acting unreasonably in terms of time taken is a high hurdle.

OnYourBikeGB
18th May 2015, 15:30
I've had a read of this.

Basically, a guy applied for a CIS tax exemption certificate for his one man company. The HMRC guy told him that they needed accounts (incorrectly) and forgot to get the forms signed (contrary to HMRC policy). To compound this, junior staff put an incorrect UTR on some form and also changed the application from one type of exemption certificate to another. All this led to a delay that resulted in the company going bust as it could not get work without a certificate.

He brought a case that the legislation in question established a public duty of care or failing that a private law duty of care arose.

The Court of Appeal rejected any notion that performance of a statutory duty established any public duty or care. Consequently for nearly all the grounds above there was no case.

In these circumstances however the judge found that an unnamed HMRC employee had taken upon themselves to complete the application form (and forge a signature probably) and that in doing so had acted on behalf of HMRC. This created a "vicarious liability" upon HMRC that allowed a private law duty of care to be established.

So in short, the guy had a claim ONLY because an HMRC employee acted outside their remit.

Where the situation is that HMRC is claiming that a scheme is ineffective (NOT illegal) and is making enquiries that a Judge would regard as reasonable in terms of scope and time, it's clear from this judgement that there is no claim.

I think a better line of argument might be legitimate expectation.

Proving that HMRC is acting unreasonably in terms of time taken is a high hurdle.

Interesting. From a S58 point of view, where we were threatened with a fraud investigation, if it was proven that there was no foundation for that accusation to be made, would that amount to a HMRC employee acting outside of their remit if they were to pursue it?

webberg
18th May 2015, 16:00
Interesting. From a S58 point of view, where we were threatened with a fraud investigation, if it was proven that there was no foundation for that accusation to be made, would that amount to a HMRC employee acting outside of their remit if they were to pursue it?

Possibly but it might be argued that the HMRC was acting WITHIN his remit in preventing loss to the Exchequer (although technically HMRC's job is to administer the tax system not maximise the tax take).

You would also have to prove a "loss".

Where an unfounded fraud accusation cost you a contract (as it easily could in financial services) then perhaps a case might be found. Where there is no discernible loss, aside from naming a shaming an HMRC employee, what benefit is there?

centurian
18th May 2015, 17:33
Interesting. From a S58 point of view, where we were threatened with a fraud investigation, if it was proven that there was no foundation for that accusation to be made, would that amount to a HMRC employee acting outside of their remit if they were to pursue it?

As I understand it, the TAA approach means arguing/admitting that previously declared information on a self-assessment return was not correct (albeit with justifications as to why).

But I think that admission gives HMRC the foundation to consider the possibility of fraud - and at least initiate an investigation.

How far they would be allowed to run with that is another matter, but I simply can't fathom how a judge would find against HMRC for starting an investigation after you've admitted giving them incorrect information.

You may suspect they are launching an investigation for reasons of spite, but I think the office junior would be able to write a justification which any judge would accept.

OnYourBikeGB
18th May 2015, 23:49
As I understand it, the TAA approach means arguing/admitting that previously declared information on a self-assessment return was not correct (albeit with justifications as to why).

But I think that admission gives HMRC the foundation to consider the possibility of fraud - and at least initiate an investigation.

How far they would be allowed to run with that is another matter, but I simply can't fathom how a judge would find against HMRC for starting an investigation after you've admitted giving them incorrect information.

You may suspect they are launching an investigation for reasons of spite, but I think the office junior would be able to write a justification which any judge would accept.

Well, to make that work, you'd have to interpret 'admission' of being of the variety that implies a guilt, which even HMRC themselves have said is not the case. Their argument was that the scheme didn't work, not that we had ever acted illegally and they've said so under oath. It's subsequent legal precedent on which TAA is founded, there's nothing to 'admit' to, just to 'agree' with. I think you're maybe giving the office junior a bit too much credit, unless he's the fall guy or can explain how we created a rift in the space time continuum, because that's pretty much the only way fraud could have occurred. If they do go down that route, they won't be able to do it more than once or twice before they are made to look ridiculous. Time, pun intended, will tell, I suppose.

centurian
19th May 2015, 06:22
In order to make any fraud argument stick, yes, agree with the above.

But we are talking about whether they can even investigate whether fraud might have taken place - and they have considerably more leeway in this respect.

Whatever semantics are used (admit, agree etc.) - it still involves the basic point that previously declared information may not have been totally correct.

I could be wrong, but I just can't see any judge finding against HMRC if they lay that argument out as to why they initiated an investigation.

webberg
19th May 2015, 08:52
In order to make any fraud argument stick, yes, agree with the above.

But we are talking about whether they can even investigate whether fraud might have taken place - and they have considerably more leeway in this respect.

Whatever semantics are used (admit, agree etc.) - it still involves the basic point that previously declared information may not have been totally correct.

I could be wrong, but I just can't see any judge finding against HMRC if they lay that argument out as to why they initiated an investigation.

I'd make a couple of observations.

Firstly, to be fraud an action must be DELIBERATE.

Could you honestly say that back in 2005 or whatever you DELIBERATELY choose to show entries on your return that you KNEW were incorrect?

I suspect not. Only now, in the light of better information and knowledge do you understand that an honest error was made and you want to correct it.

Secondly, this is not a good place to discuss this.

The stakes have been raised and now more than ever HMRC will haunt these boards.