“(5) A failure by a scheme administrator to provide information required to be provided to the Inland Revenue by or under this Part or Part 1 of Schedule 36 to theFinance Act 2008 is significant if— (a) the amount of information which the scheme administrator fails to provide is substantial, or (b) the failure to provide the information is likely to result in serious prejudice to the assessment or collection of tax.”
“(7) Condition A is that the inaccuracy is careless or deliberate. (8) An inaccuracy is careless if it is due to a failure by the scheme administrator to take reasonable care. (9) Condition B is that the scheme administrator knows of the inaccuracy at the time the document is produced to an officer of Revenue and Customs but does not inform such an officer at that time. (10) Condition C is that the scheme administrator— (a) discovers the inaccuracy some time later, and (b) fails to take reasonable steps to inform an officer of Revenue and Customs.”
“(6) On an appeal that is notified to the tribunal, the tribunal must consider whether the registration of the pension scheme ought to have been withdrawn. (7) If the tribunal decides that the registration of the pension scheme ought to have been withdrawn, the tribunal must dismiss the appeal. (8) If the tribunal decides that the registration of the pension scheme ought not to have been withdrawn, the pension scheme is to be treated as having remained a registered pension scheme (but subject to any further appeal).”
“Revocation of approval should be a last resort, where the application of penalties and other sanctions have not ensured compliance. If an officer is considering revoking a fulfilment business’s approval, it must first issue a ‘Minded to Revoke’ letter and follow the compliance process.”
“Where a registered pension scheme has given HMRC grounds to de-register the scheme, for example where there is no scheme administrator, de-registration is not automatic. HMRC will consider the facts and circumstances of each case and decide whether or not to de-register the scheme.”
“External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.”
“(1) The Board of Inland Revenue may at any time make a determination cancelling a person’s registration for gross payment if it appears to them that – (a) if an application to register the person for gross payment were to be made at that time, the Board would refuse so to register him, (b) he has made an incorrect return or provided incorrect information (whether as a contractor or as a sub-contractor) under any provision of this Chapter or of regulations made under it, or (c) he has failed to comply (whether as a contractor or as a sub-contractor) with any such provision …”
“Like Henderson LJ, I cannot read the power as extending to matters “which do not relate, directly or indirectly, to the requirements for registration for gross payment, and to the objective of securing compliance with those requirements” (para 60). He rightly emphasised the highly prescriptive nature of the scheme. This starts with the narrowly defined conditions for registration in the first place, among which the record of compliance with the tax and other statutory requirements is a mandatory element, allowing no element of discretion. The same conditions are brought into the cancellation procedure by section 66. The mere fact that the cancellation power is not itself mandatory is unsurprising. Some element of flexibility may be desirable in any enforcement regime to allow for cases where the failure is limited and temporary (even if not within the prescribed classes) and poses no practical threat to the objectives of the scheme. It is wholly inconsistent with that tightly drawn scheme for there to be implied a general dispensing power such as implied by the company’s submissions.”
“152. The starting point is therefore that appeal grounds which concern public law arguments should be pursued in judicial review proceedings rather than before the FTT. However, we, like the FTT, accept that the FTT may have jurisdiction to consider appeal grounds based on public law arguments (such as legitimate expectation) depending on the statutory provisions under consideration. 153. Thus, the statutory context is key, as the UT in Henryk explains. 154. In this appeal, the taxpayer appeals under s.83(1)(b) VATA, which permits appeals to the FTT with respect to “the VAT chargeable… on the importation of goods from a place outside the member States.”
“We note one point immediately, which is that on the face of it, the scope of section 83(1)(p) is broader than the scope of section 83(1)(c) (the provision in issue both in Oxfam and Noor), because an appeal lies only with respect to the amount of an assessment but instead with respect to “an assessment… under section 73(1).”
'Where it appears to the Commissioners requisite to do so for the protection of the revenue they may require a taxable person, as a condition of his supplying goods or services under a taxable supply, to give security, or further security, of such amount and in such manner as they may determine, for the payment of any tax which is or may become due from him.'
“The view that I have taken of the law means that HMRC's power of revocation is indeed capable of operating harshly, essentially for the reasons advanced by Mr Jones: if they make an unreasonable decision, the trader affected by their mistake will almost certainly suffer serious uncompensatable loss, which may sometimes be fatal to his business, before it can be corrected through the review or appeal mechanisms. It is all the more important, therefore, that they take all possible care to ensure that any such decision is well-founded. The risk of error is obviously increased if the trader has not been given an opportunity to draw to HMRC's attention, before the decision is taken, factual or other matters which they may have overlooked or mis-appreciated in their assessment of the grounds for revocation. I do not see why it should not be normal practice for a trader whose registration HMRC is contemplating revoking to be given prior notice of the intended decision, and the grounds for it, in the form of a "show cause" or "minded to" letter, with a limited time for response, before a final decision is taken. (Or the decision could be notified, but on the basis that it would not take effect for a limited period during which representations could be made.) Mr Brennan was asked in the course of oral submissions whether there was any reason why such a procedure could not be followed, but he was unable to suggest any. I could understand a concern about over-complicating the process of revocation; but in fact such a procedure would be substantially the same as the process of informal review which is already offered – with the crucial difference that it would occur before, rather than after, the decision had taken effect. I can also understand that there may be particular cases where HMRC reasonably take the view that the public interest requires the registration to be revoked without prior notice and with immediate effect; but in the light of the time taken to reach a decision in the present case it would be hard for them to maintain that that will always be so. None of this is directly pertinent to the present case because, as I have said, no case of procedural unfairness was advanced; and I need not therefore consider whether a failure to give prior notice of an intention to revoke might in an appropriate case constitute a sufficient unfairness to justify the intervention of the Court. But I would encourage HMRC to give further thought to their procedures in this regard.”
“One party to that document, Needham, Business Centre, Pensions Scheme, Trustees Limited (for convenience, the "Trustee”) was not established at that date. As is common with the establishment of pension schemes, they are initially established by a short, initial (or interim) document, with the full deed and rules following later. It is accepted that the Trustee being shown as a signatory to the deed dated9 July 2013 could be confusing, but this was an administrative oversight on the part of both NBC and the Trustee. The oversight arose because they were both under the impression (mistakenly as it happens) that, because the Scheme was registered on9 July 2013 , and because the terms of the interim document provided – again as is common – that the provisions of the full trust deed and rules would replace those of the interim document, then the date shown on the trust deed and rules should correspond with that of registration of the Scheme. Despite this, significantly, no assets, (whether by way of contributions or transfers) were received into the Scheme until some considerable time after the establishment of the Trustee. Accordingly, the tax reliefs granted as a result of Scheme registration were not operable until the commencement of contributions to the Scheme. When contributions to the Scheme were commenced, the contributions were paid to the account of the Trustee.”
“95. Mr Isles was keen to distance himself from the PRP. For example, we were somewhat perplexed by his refusal to accept that he had acted as an introducer of members to the Ark Schemes even though: (1) he was forced to concede that he had received commissions from the Ark LLPs in return for doing just that; (2) Ms Oades confirmed that he was the person who had made her aware of the PRP; and (3) the Final Redacted Spreadsheet listed him as the introducer in relation to around fifteen members of the Ark Schemes. He was also not very forthcoming on the link between the Ark Schemes and one of his major clients, the benefits which he had received for setting up and running the sponsoring employer companies for the Portman Scheme and the Lancaster Scheme (of each of which he was the sole director) and the role which he had played in the proposed amendments to the powers of the two schemes to which we have referred in paragraph 92 above. 96. In the light of his approach, we were not entirely convinced by his protestations to the effect that that he had subsequently divested himself of all of the commissions which he had obtained from the Ark LLPs for introducing members to the Ark Schemes, either to the member in question or to charity and, in any event, his assertion that he had not benefitted financially from the PRP in any way sat somewhat uncomfortably with his admission that the arrangement had produced benefits for the major client referred to in paragraph 95 above and that this had led to more work from that client and some new clients for I&S Limited.”
“the person's position as regards any tax, including the person's position as regards – (a) past, present and future liability to pay any tax,…”
“An information notice may not require a person to produce a document if the whole of the document originates more than 6 years before the date of the notice, unless the notice is given by, or with the agreement of, an authorised officer.”
“Finally, HMRC may not use their Sch 36 powers for a fishing expedition—whether for their own or the purposes of another revenue authority. A broadly drafted request will not be valid if in reality HMRC are saying 'can we have all available documents because they form so large a class of documents that we are bound to find something useful'. What is required is that the request is genuinely directed to the purpose for which the notice may be given, namely to secure the production of documents reasonably required for carrying out an investigation or enquiry of any kind into another taxpayer's tax position. It is no objection however, to the issue of a third party notice that it seeks disclosure of 'conjectural' documents; in other words documents that might not exist.”
“Paragraph 1 of Sch 36 provides that an HMRC officer can issue an information notice ‘if the 20 information or document is reasonably required by the officer for the purpose of checking the taxpayer’s tax position’ (see §2 above). There is nothing in this section that requires HMRC to suspect that the return is incorrect before issuing an information notice. HMRC are entitled to check taxpayer’s tax position and they are entitled to any documents or information reasonably required for the purpose of doing so. In other words, HMRC are entitled to undertake ‘fishing expeditions’ when checking returns: they do not need suspicion in order to check a tax return.”