“It is the parties’ intention that by the conclusion of the five-year taxpayer assistance and compliance programme under this MOU, there will, as a result of the procedures contemplated by this MOU, be no relevant persons with a beneficial interest in relevant property who are liable to taxation in one party but are using the laws of the other party to disguise such liability without paying appropriate tax in the manner contemplated by this MOU. The measures which the parties intend to take and which are described in this MOU are intended to achieve that objective.”
“Liechtenstein Disclosure Facility: Frequently Asked Questions (FAQs)” containing guidance for taxpayers. The FAQs told taxpayers to contact the HMRC Liechtenstein desk to notify an intention to make a disclosure, and indicated that: “if you are eligible, HMRC will send you a registration certificate within 60 days of receiving your notification … if HMRC do not accept you into the disclosure facility they will write to you explaining why and tell you what you should do next.”
“? Issue dropping to 40% within HMRC. Some within HMRC fundamentally disagree that such arrangements can enter LDF…”
“Lobby in HMRC keen to develop enquiries through EBT process & aghast that LDF available. But it is available. Entirely possible that it could be changed in the future → accepted within HMRC that it is available.”
“At the meeting in December we were talking about key fundamental technical issues, we were not aware of LDF process issues. Certain clients wanted to go ahead & possibly jumped the gun a bit [because] wanted to file on named basis & make payments. Appears there has been a misunderstanding as to where we are/were in the process”
“Currently reviewing if CRO is allowable deduction within LDF terms and other matters are being discussed. → cannot advise re further cases registering within LDF. Other [accountants] getting same message. This is the only information Joe has.”
“To be clear, the full favourable terms that will not be available are those that can lead to a reduction to the amount paid to HMRC. These are: • A 10 per cent fixed penalty on the underpaid liabilities (for periods to5 April 2009 ) • Assessment period limited to accounting periods/tax years commencing on or after1 April 1999 • The option to choose whether to use a single composite rate of 40 per cent or to calculate actual liability on an annual basis (for some years after 2008/09, a Single Charge Rate) There will be no restrictions on access to the limited favourable terms: • Assurance about criminal prosecution • Single point of contact for disclosures.” • A 10 per cent fixed penalty on the underpaid liabilities (for periods to5 April 2009 ) • Assessment period limited to accounting periods/tax years commencing on or after1 April 1999 • The option to choose whether to use a single composite rate of 40 per cent or to calculate actual liability on an annual basis (for some years after 2008/09, a Single Charge Rate) • Assurance about criminal prosecution • Single point of contact for disclosures.”
“What concerns me most is the possibility of having to backtrack on the BDO cases, although I remain hopeful that we won’t have to do that.”
“Hold fire please. This is tricky. I imagine BDO are looking to come in because of the treatment we have previously indicated they would get in the cases that are already in. I thought they were aware that recent developments have thrown that treatment into doubt but by the sound of it we need to have another conversation with them. …”
“…the fact is that since the LDF commenced in September 2009 we have accepted that when an existing enquiry case enters the LDF, all open issues can be settled via the LDF disclosure and our internal guidance and procedures have been predicated on that basis. If we seek to treat EBT cases differently we will be open to challenge...”
“[18] … We also decided that cases where HMRC had already accepted LDF registrations but which would not fall to be excluded (category 2 cases), should also be permitted to settle on the favourable terms; they had been given assurances from which HMRC could not withdraw…”
“[21] … On28 May 2014 , having reviewed the legal advice and considered the matter further, I emailed the other Commissioners explaining that I did not consider it consistent with our agreed policy or even-handed in the treatment of the taxpayer population as a whole to allow settlement under favourable terms to Category 3 taxpayers….”
“[23] We recognised that, in some circumstances, it could be unfair for HMRC to act in such a way as to defeat a legitimate expectation. It was for that reason, as explained above, that we decided not to reverse the settlements of those users of marketed avoidance schemes who had already settled through LDF or to alter the position of those EBT users who had had their applications for registration in the LDF accepted. However, it was our view and conclusion that the present claimants (who had their applications for registration put on hold pending our consideration of the availability of the LDF for EBT users) were in a materially different position and that it would not be unfair or improper, nor would it defeat any legitimate expectation, to refuse their applications to register for the favourable terms of LDF. Like all other EBT users they would, of course, still be able to avail themselves of the settlement opportunity under the EBTSO, or to litigate their positions before the Tax Chamber of the First-tier Tribunal in the ordinary way.”
“’Unfairness amounting to an abuse of power’ as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power. As Lord Donaldson, MR, said in R v ITC ex parte TSW: ‘The test in public law is fairness, not an adaptation of the law of contract or estoppel’. In short, I regard the MFK category of legitimate expectation as essentially but a head of Wednesbury unreasonableness, not necessarily exhaustive of the grounds upon which a successful substantive unfairness challenge may be based.”
“… on the one hand mere unfairness - conduct which may be characterised as “a bit rich” but nevertheless understandable — and on the other hand a decision so outrageously unfair that it should not be allowed to stand.”
“[72] … Such a marked lack of even-handedness between the rival bidders calls for the most compelling justification, which I cannot find in the reasons advanced by the Commission in support of its decision. … [82] … I come back to the broader and central issue of fairness. … In my judgment the case is most appropriately dealt with by reference to the Court of Appeal’s reasoning in Unilever. The Commission’s decision to negotiate exclusively with TPL was, in all the circumstances, so unfair as to amount to an abuse of power. Unilever itself was an exceptional case, but this case, too, can properly be regarded as exceptional.”
“[111] Logically, if there is a doctrine of conspicuous unfairness as a substantive head of judicial review which is to be treated as a distinct form of abuse of power, it must be for the court to decide whether in any particular case the decision–maker has infringed that principle since the court must decide whether power has been abused. It is no different from a court deciding that a decision has been exercised for an improper purpose or that an irrelevant consideration has been taken into account. But I do not believe that Unilever has formulated a fresh head of review conferring on the court a wide discretion to substitute its view of the substantive merits for the decision-maker. In order to constitute conspicuousunfairness, the decision must be immoral or illogical or attract similar opprobrium, and it necessarily follows that it will be irrational. I would treat this concept of conspicuous unfairness as a particular and distinct form of irrationality, which in essence is how it was viewed by Sir Thomas Bingham in Unilever. There are no doubt cases, of which Unilever is one, where the concept of fairness, and an allegation of conspicuous unfairness, better captures the particular nuance of the complaint being advanced than the concept of irrationality. Indeed, I think that is typically so in any case where the alleged unreasonable behaviour involves a sudden change of policy or inconsistent treatment. It is more natural and appropriate to describe such conduct as unfair rather than unreasonable. But in my view it is only if a reasonable body could not fairly have acted as the defendants have that their conduct trespasses into the area of conspicuous unfairness amounting to abuse of power. The court's role remains supervisory.”
“If a Customs and Excise officer, with the full facts before him, has given a clear and unequivocal ruling on VAT in writing or, knowing the full facts, has misled a registered person to his detriment, any assessment of VAT due will be based on the correct ruling from the date the error was brought to the registered person’s attention”
“[33] The essence of the challenge on unfairness in this context is disparate treatment as between identically placed taxpayers. … … If such unfairness exists, it is not altered by the fact that the Sheldon principle may prevent equal treatment being achieved by backdating the time from which the cable companies must pay VAT on the magazine supply. Conduct which is unfair and an abuse of power absent the Sheldon principle cannot become a proper exercise of power because the Sheldon principle has been adopted. …”
“[10] … But the mere fact that two taxpayers arguably in the same situation have not in fact been charged tax does not raise a case of unfairness without more. If there was some evidence, which it would be incumbent on Mr Sherry’s client to produce, to show that there had been some unfairness; a basis for distinguishing between the taxpayers; some favour shown to the Inspector which caused the Revenue to charge his client to tax but not the others; if there was some specific basis to show that the decision made was based upon some caprice or discriminatory reason; why, then the case would be different. But it is not, in my judgment, open to a taxpayer, simply because one taxpayer has been charged and another has not, simply to raise the contention and then expect the Revenue to respond requiring them to disclose the private affairs of other taxpayers”
“[71] … if a taxpayer has acquired a legitimate expectation that he is entitled to the benefit of a particular concession, he also has a legitimate expectation that such concession will not be withdrawn retrospectively and that any withdrawal will be managed fairly. … the [Commissioners] should give reasonable notice of any withdrawal or alteration of a concession so as to allow the taxpayers time to make any necessary adjustments to their affairs…”