“(4) For the purposes of sub-para. (3)(a) there is benefit accrual in relation to the individual under an arrangement – (a) in the case of a money purchase arrangement that is not a cash balance arrangement, if a relevant contribution is paid under the arrangement on or after6 April 2014 , ...” (a) in the case of a money purchase arrangement that is not a cash balance arrangement, if a relevant contribution is paid under the arrangement on or after6 April 2014 , ...”
“Paragraph 14 of Schedule 36 to FA 2004 (when a relevant contribution is paid under an arrangement) applies for the purposes of sub-paragraph (4)(a) and (c)(i)”
“(1) For the purposes of paragraph 13(a) a relevant contribution is paid under the arrangement if – (a) a relievable pension contribution is paid by or on behalf of the individual under the arrangement, (b) a contribution is paid in respect of the individual under the arrangement by an employer of the individual, or (c) a contribution paid otherwise than by or on behalf of the individual or by an employer of the individual in respect of the individual subsequently becomes held for the purposes of the provision under the arrangement of benefits to or in respect of the individual.” (a) a relievable pension contribution is paid by or on behalf of the individual under the arrangement, (b) a contribution is paid in respect of the individual under the arrangement by an employer of the individual, or (c) a contribution paid otherwise than by or on behalf of the individual or by an employer of the individual in respect of the individual subsequently becomes held for the purposes of the provision under the arrangement of benefits to or in respect of the individual.”
“Expressions used in this paragraph and Part 4 of FA 2004 (pension schemes) have the same meaning in this paragraph as in that Part.”): “In this Part “arrangement”, in relation to a member of a pension scheme, means an arrangement relating to the member under the pension scheme.”
“For the purposes of this Part an arrangement is a “money purchase arrangement” at any time if, at that time, all the benefits that may be provided to or in respect of the member under the arrangement are cash balance benefits or other money purchase benefits.”
“In this Part “cash balance benefits” means benefits the rate or amount of which is calculated by reference to an amount available for the provision of benefits to or in respect of the member calculated otherwise than wholly by reference to payments made under the arrangement by the member or by any other person in respect of the member (or transfers or other credits).”
“In this Part “money purchase benefits”, in relation to a member of a pension scheme, means benefits the rate or amount of which is calculated by reference to an amount available for the provision of benefits to or in respect of the member (whether the amount so available is calculated by reference to payments made under the pension scheme by the member or any other person in respect of the member or any other factor).”
“(1) Subject to paragraph (2) an individual may rely on paragraph 1 if – (a) the individual has given a paragraph 1 notice to HMRC, and (b) HMRC have accepted that notice by issuing a certificate to the individual. (2) An individual may not rely on paragraph 1 if – (a) HMRC have refused to accept a paragraph 1 notice in accordance with regulation 6, (b) HMRC have revoked the certificate in accordance with regulation 11, or (c) a paragraph 1(3) event has occurred.” (a) the individual has given a paragraph 1 notice to HMRC, and (b) HMRC have accepted that notice by issuing a certificate to the individual. (a) HMRC have refused to accept a paragraph 1 notice in accordance with regulation 6, (b) HMRC have revoked the certificate in accordance with regulation 11, or (c) a paragraph 1(3) event has occurred.”
“(1) The individual may require HMRC to provide reasons for replacing or revoking the certificate. (2) Paragraphs (1) and (2) of regulation 7 apply to a decision to replace or revoke the certificate as they apply to a refusal to accept the paragraph 1 notice. (3) Where an appeal under this regulation is notified to the tribunal, the tribunal must determine whether HMRC replaced or revoked the certificate in accordance with regulations 10(1) or 11. (4) If the tribunal allows the appeal, the tribunal may direct HMRC to issue a certificate to the individual.”
“25…In very general terms, the underlying policy of the legislation, in common with much predecessor legislation in the same field, was to provide fiscal incentives for the establishment and investment of occupational pension schemes, so as to provide retirement pensions and associated benefits for employees and their dependants, but coupled with strict provisions designed to ensure that the schemes would be properly administered, and that payments made out of them to beneficiaries or sponsoring employers would be confined to certain authorised categories of payment. If unauthorised payments were made, they would be taxed at high rates intended to have a deterrent effect and to compensate the State, in a rough and ready way, for the fiscal benefits previously enjoyed by the relevant funds.”
“(2) The standard lifetime allowance for the tax year 2012-13 and, subject to subsection (3), subsequent tax years is£1,500,000 .”
“(3) Where an appeal under this regulation is notified to the tribunal, the tribunal must determine whether HMRC replaced or revoked the certificate in accordance with regulations 10(1) or 11.”
“VIRGIN WILL CONTRIBUTE UP TO 5% OF YOUR SALARY TO MATCH YOUR CONTRIBUTION”
“COMPANY PENSION SCHEME The Company contributes to a personal voluntary pension plan which all permanent, full-time employees are invited to take out after they have been employed for a period of at least six months and are 25 years of age or over. The recognised Personal Pension Plan is with the Sun Alliance Group and Company contribution is paid by direct debit on a monthly basis. The Personnel Manager of VAA administers the arrangements and invites by letter eligible employees to consider their pension planning arrangements at the appropriate time. Alternative Personal Pension Plans may be eligible to attract Company contributions. However, payment can then only be made once a year on sight of the certificate, issued by the insurance company managing their plan, confirming payment of premiums under an approved pension plan (LAPC). The procedure for claiming this benefit is as follows: - (a) The employee must notify the Personnel Department in writing, of the plan details and his/her intention to claim the benefit. This will be acknowledged in writing by the Personnel Department. (b) The employee, having paid 12 months premium may forward the relevant information to the Personnel Department for reimbursement. Note: Employees making their own arrangements should be aware that they will be responsible for all aspects of their pensions, including annual reviews and any tax or National Insurance implications.”
“Dear Steven, I am writing to confirm that I have received notification from your Manager that you will be taking retirement from the Company with effect from28th February 2014 . Final Payment and P45 You will receive a final payment on20th February 2014 , which will include your salary up until28th February 2014 . … Pension If you are in the Company Pension scheme you will automatically be written to within 6 to 8 weeks of leaving with your options and Leaving Statement. If you have any queries please contact the Pensions Helpline on 0845 7234235.”
“...To explain what the Certificate of Contribution was, it was a certificate confirming contributions during a 12-month period which Mr Lefort requested from Standard Life. He then sent this on to Virgin Atlantic so that they could arrange their employer contribution based on the value of contributions paid by Mr Lefort...”
“If you want to rely on fixed protection 2014, there are restrictions on what you will be able to do with your pension savings. For example, after5 April 2014 you will normally need to stop building up benefits in every registered pension scheme that you belong to. So make sure you tell your employer or pension scheme in good time if you want to stop building up benefits into your scheme, and remember to stop any direct debits. If you make any contributions or have benefit accrual on or after6 April 2014 you will normally lose fixed protection 2014.”
“PTM093800 – Protection from the lifetime allowance charge: fixed protection, fixed protection 2014 and fixed protection 2016: making contributions to an arrangement once a member has any of the protections Failure to stop an automatic payment from a bank and building society If the member has told their bank or building society in good time that they want to stop the payment but the bank or building society have failed to act on this then the member will not lose their fixed protection. Here, the payment(s) made by the bank or building society were beyond their control and the member never intended that the payment(s) should be contributions. HMRC will not consider such payments as contributions and so fixed protection will not be lost. The payments should be returned to the member although they will have to repay any tax relief they have received in relation to them.”
“[t]hese annual contributions were based on his earnings in each calendar year and were always paid within two weeks of the end of each year.”
“...Virgin Atlantic always completed their pension remittance within 20 days of receiving the Certificate of Contribution...”
“279 Other definitions … “employee” and “employer” have the same meaning as in the employment income Parts of ITEPA 2003 (see sections 4 and 5 of that Act) but include (respectively) a former employee and a former employer (and “employment” is to be read accordingly), …”
“...a Schedule takes its location from the section introducing it...it is regarded as being in the same Part or Chapter as the section introducing it.”
“Where a definition is expressed to apply to a Chapter or Part, that includes any Schedules introduced by sections in the Chapter or Part.”
“(1) For the purposes of paragraph 13(a) a relevant contribution is paid under the arrangement if – (a) a relievable pension contribution is paid by or on behalf of the individual under the arrangement, (b) a contribution is paid in respect of the individual under the arrangement by an employer of the individual, or (c) a contribution paid otherwise than by or on behalf of the individual or by an employer of the individual in respect of the individual subsequently becomes held for the purposes of the provision under the arrangement of benefits to or in respect of the individual.” (a) a relievable pension contribution is paid by or on behalf of the individual under the arrangement, (b) a contribution is paid in respect of the individual under the arrangement by an employer of the individual, or (c) a contribution paid otherwise than by or on behalf of the individual or by an employer of the individual in respect of the individual subsequently becomes held for the purposes of the provision under the arrangement of benefits to or in respect of the individual.”
“The action of contributing or giving as one's part to a common fund or stock; the action of lending aid or agency to bring about a result.”
““11. HMRC may revoke a certificate if they— (a) have reason to believe that a paragraph 1(3) event has occurred, …”
“132. …The attraction of the First-tier Tribunal as a “one stop shop” for all issues concerning the amount taxpayers should be required to pay to HMRC cannot alter the meaning and effect of a legislative scheme that, properly construed, requires certain issues to be litigated in the tax tribunal, others to be litigated by way of judicial review in the High Court and in specific circumstances the Upper Tribunal; and disputes about the amount to be collected by HMRC dealt with as a matter of enforcement in the civil courts (the County Court or High Court). The courts and tribunals cannot confer jurisdiction on a statutory tribunal any more than the parties can agree to do so. The question of jurisdiction can only be determined by reference to the particular statutory scheme in question that governs the tax tribunal’s jurisdiction…”
“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.”
“7 Appeal against refusal to accept notice (1) The individual may appeal against a refusal by Her Majesty's Revenue and Customs to accept the paragraph 14 notice. (2) The notice of appeal must be given to Her Majesty's Revenue and Customs before the end of the period of 30 days beginning with the day on which the refusal to accept the paragraph 14 notice was given. (3) Where an appeal under this regulation is notified to the tribunal, the tribunal must determine whether Her Majesty's Revenue and Customs were entitled to take the view that the notice did not satisfy the requirements in regulation 4. 4) If the tribunal allows the appeal, the tribunal may direct Her Majesty's Revenue and Customs to accept the paragraph 14 notice and issue a certificate to the individual.”
“44. First, the natural reading of Regulation 7(3) is that it is imposing some limitation on the scope of an appeal. If the true position is that a broad appeal right is conferred by Regulation 7(1) alone, the obvious question is what function Regulation 7(3) serves. 45.The Appellants meet this challenge by saying that failure of the Regulation 4 requirements is a necessary precondition to HMRC refusing to accept a Paragraph 14 notice. Therefore, they argue, there is nothing unusual about Regulation 7(3) directing the FTT to consider whether that necessary precondition is satisfied. Specifying this factor does not preclude the FTT from considering other issues, and indeed Regulation 7(1) directs it to do so. However, the Appellants have not provided us with a convincing explanation of why, if all aspects of HMRC’s decision are put in issue by Regulation 7(1), Regulation 7(3) singles out for special mention only the requirements of Regulation 4. Why, for example, does Regulation 7(3) not direct the FTT to consider whether HMRC exercised any discretion in a reasonable way in the same way ass16(4) of the Finance Act 1994 directs the FTT’s attention to that issue in the context of decisions on excise duty “ancillary matters”? In our judgment, the Appellants’ construction gives Regulation 7(3) little or no meaning, whereas HMRC’s construction at least gives it some meaning, even if it does lead to a relatively narrow right of appeal as we have explained at [40(3)] above. 46. We are reinforced in this conclusion by the fact that the FTT’s sole power, in allowing an appeal, is its discretionary power to direct HMRC to accept a Paragraph 14 notice and issue a certificate. A taxpayer complaining about HMRC’s exercise of discretion might make a wide category of argument. It might be said that HMRC’s decision-making process was unfair, that HMRC ignored relevant considerations or took into account irrelevant considerations. If such challenges succeeded, it is not obvious that the FTT would be able to make its own decision on the issue. It might wish to remit the matter back to HMRC with directions for reconsideration. Yet Regulation 7(4) gives the FTT no such power (again by contrast withs16(4) of the Finance Act 1994 ). 47. The force of that point is increased by a consideration of the nature of discretion that HMRC need to exercise in the context of late Paragraph 14 notices. An HMRC official exercising that discretion may wish to take into account the fact that the Regulations set out a time limit and that, by permitting that time limit to be exceeded, the Appellants would be put in a better position than other taxpayers. The official could reasonably be expected to take into account considerations relating to the public finances and the desirability of taxpayers generally meeting deadlines imposed on them. An FTT judge will not always be well-placed to weigh up such administrative considerations, yet Regulation 7 gives the FTT no power to remit the decision back to HMRC, who will frequently be better placed.”
“49. Having weighed up the competing indications, in respectful disagreement with the FTT, we consider that HMRC’s construction of Regulation 7 is to be preferred. On an appeal notified to the FTT, the FTT’s sole jurisdiction is to consider whether the requirements of Regulation 4 are met.”
“(3) Where an appeal under this regulation is notified to the tribunal, the tribunal must determine whether HMRC replacedor revoked the certificate in accordance with regulations 10(1) or 11.”
“Mr Lefort has contacted both Standard Life and Virgin Atlantic and requested that Standard Life refund the final pension contribution, but he has been told that this is not possible. We understand that refunds are only usually allowed in circumstances where there was no intention to make a contribution, or where the member was not entitled- to the contribution in the first place. In this case the member was certainly entitled to the contribution, but the unnecessary and unprecedented delay in payment meant that the contribution was paid after the cut-off date for Fixed Protection 2014. This was completely outside of our client's control.”
“120. I have not included in that citation the passages where Morgan J focused particularly on a mistake about the tax consequences of a transaction, this not being such a case. In Van der Merwe there was disagreement between the parties as to whether, on the facts, the case was governed by the common law rules for declaring a contract to be void by reason of mistake or the equitable rules for setting aside a gift for mistake. Having found against Elias on the issue of consideration, I consider that the latter principles do apply. As Morgan J held in Van der Merwe at §31, "the difference between the cases where the equitable rules apply and those where they do not turns on whether consideration has been given for the benefit conferred by the transaction". In the present case, I have found that Elias did not provide any consideration for the transfer. He did not pay the figure of£400,000 or any sum pursuant to the Proposal and he did not provide the consideration (or any part of it) for the original transfer to William. Accordingly, applying the principles set out above to the facts of this case, I find that the 2014 Transfer was directly caused by a sufficiently serious mistake on the part of William so as to mean it would be unconscionable for Elias to remain the owner of the Property. In doing so, I explicitly reject the submission made by Mr Winn-Smith that the circumstances are such as to show that William deliberately ran the risk, or must be taken to have run the risk, of being wrong. On that basis the 2014 Transfer is liable to rescission and William is entitled to an order that Elias transfer the Property back to him.”
“THE ORDINARY MEANING OF THE WORDS [41] …Where ordinary words are used in legislation it is well recognised that seeking to provide definitions of them can be a dangerous exercise, as glossing the statutory language by using other words runs the risk of those (non-statutory) words being treated as a substitute for the statutory words when they may not have quite the same meaning. Most English words have nuances of meaning and shades of usage that are not precisely captured by substituting other words. So one should be wary of trying to lay down a definition of ordinarywords; the meaning of an ordinary word is to be found not so much in a dictionary but in how it is in fact ordinarily used, and I think it is generally more helpful to tease out the meaning of ordinary words by providing illustrative examples of how they are used in everyday contexts.” [41] …Where ordinary words are used in legislation it is well recognised that seeking to provide definitions of them can be a dangerous exercise, as glossing the statutory language by using other words runs the risk of those (non-statutory) words being treated as a substitute for the statutory words when they may not have quite the same meaning. Most English words have nuances of meaning and shades of usage that are not precisely captured by substituting other words. So one should be wary of trying to lay down a definition of ordinarywords; the meaning of an ordinary word is to be found not so much in a dictionary but in how it is in fact ordinarily used, and I think it is generally more helpful to tease out the meaning of ordinary words by providing illustrative examples of how they are used in everyday contexts.”
“...I recognise that different considerations may arguably arise in cases where an unauthorised payment is inadvertently or carelessly made, and the member concerned takes prompt and effective steps to restore it to the fund before any assessment is made by HMRC...”
“If the intended purpose and effect of the transactions is that money leaves the scheme and is placed at the free disposal of the member, the mere fact that the money may be subject to an equitable obligation to restore it to the scheme will not prevent it from being a "payment" in the ordinary sense of that word.”
“The concept of a charge to tax which can vary in amount, or even be negated, depending on the happening of events subsequent to those which gave rise to the assessment, seems to me a very strange one which Parliament is most unlikely to have contemplated. The validity and amount of an assessment to tax should normally be determined by reference to the facts as they stood at the date of assessment, not by reference to steps later taken by the taxpayer in an effort to retrieve the situation which led to the charge being incurred.”
“36. The principles applicable to rescission of a non-contractual voluntary disposition for mistake were comprehensively set out in the judgment of Lord Walker in Pitt v Holt[2013] UKSC 26 ,[2013] 2 AC 108 , with which the other members of the Supreme Court agreed. They may be summarised as follows (1) There must be a distinct mistake as distinguished from mere ignorance or inadvertence or what unjust enrichment scholars call a “misprediction” relating to some possible future event. On the other hand, forgetfulness, inadvertence or ignorance can lead to a false belief or assumption which the court will recognise as a legally relevant mistake. Accordingly, although mere ignorance, even if causative, is insufficient to found the cause of action, the court, in carrying out its task of finding the facts, should not shrink from drawing the inference of conscious belief or tacit assumption when there is evidence to support such an inference. (2) A mistake may still be a relevant mistake even if it was due to carelessness on the part of the person making the voluntary disposition, unless the circumstances are such as to show that he or she deliberately ran the risk, or must be taken to have run the risk, of being wrong. (3) The causative mistake must be sufficiently grave as to make it unconscionable on the part of the donee to retain the property. That test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction or as to some matter of fact or law which is basic to the transaction. The gravity of the mistake must be assessed by a close examination of the facts, including the circumstances of the mistake and its consequences for the person who made the vitiated disposition. (4) The injustice (or unfairness or unconscionableness) of leaving a mistaken disposition uncorrected must be evaluated objectively but with an intense focus on the facts of the particular case. The court must consider in the round the existence of a distinct mistake, its degree of centrality to the transaction in question and the seriousness of its consequences, and make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected.” (1) There must be a distinct mistake as distinguished from mere ignorance or inadvertence or what unjust enrichment scholars call a “misprediction” relating to some possible future event. On the other hand, forgetfulness, inadvertence or ignorance can lead to a false belief or assumption which the court will recognise as a legally relevant mistake. Accordingly, although mere ignorance, even if causative, is insufficient to found the cause of action, the court, in carrying out its task of finding the facts, should not shrink from drawing the inference of conscious belief or tacit assumption when there is evidence to support such an inference. (2) A mistake may still be a relevant mistake even if it was due to carelessness on the part of the person making the voluntary disposition, unless the circumstances are such as to show that he or she deliberately ran the risk, or must be taken to have run the risk, of being wrong. (3) The causative mistake must be sufficiently grave as to make it unconscionable on the part of the donee to retain the property. That test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction or as to some matter of fact or law which is basic to the transaction. The gravity of the mistake must be assessed by a close examination of the facts, including the circumstances of the mistake and its consequences for the person who made the vitiated disposition. (4) The injustice (or unfairness or unconscionableness) of leaving a mistaken disposition uncorrected must be evaluated objectively but with an intense focus on the facts of the particular case. The court must consider in the round the existence of a distinct mistake, its degree of centrality to the transaction in question and the seriousness of its consequences, and make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected.”
“(1) a donor can rescind a gift by showing that he acted under some mistake of so serious a character as to render it unjust on the part of the donee to retain the gift: para 101 quoting Ogilvie v Littleboy(1897) 13 TLR 399 at 400 (2) a mistake is to be distinguished from mere inadvertence or misprediction: para104; (3) forgetfulness, inadvertence or ignorance are not, as such, a mistake but can lead to a false belief or assumption which the law will recognise as a mistake: para 105; (4) it does not matter that the mistake was due to carelessness on the part of the person making the voluntary disposition unless the circumstances are such as to show that he deliberately ran the risk, or must be taken to have run the risk, of being wrong: para 114; (5) equity requires the gravity of the mistake to be assessed in terms of injustice or unconscionability: para 124; (6) the evaluation of unconscionability is objective: para 125; (7) the gravity of the mistake must be assessed by a close examination of the facts which include the circumstances of the mistake and its consequences for the party making the mistaken disposition: para 126; (8) the court needs to focus intensely on the facts of the particular case: para 126;”
“131. …Rectification is a closely guarded remedy, strictly limited to some clearly-established disparity between the words of a legal document, and the intentions of the parties to it. It is not concerned with consequences. So far as anything in Racal is relevant to the different equitable remedy of rescission on the ground of mistake, it is relevant, not to establishing the existence of a mistake, but to the court's discretion to withhold relief in cases where it would be inappropriate for the court to grant it.”
“the jurisdiction given to this tribunal in a case such as this does not extend to making orders to overturn (or review) the administrative process of HMRC…The power to review HMRC’s decision rests with the High Court (see e.g. paragraphs [39ff] HMRC v Hok Ltd[2012] UKUT 363 (TCC) .”
“47. Thus although the FTT did not itself have power to order rectification, it could determine that if rectification would be granted by a court who does have jurisdiction to grant it, Mr Lobler’s tax position would follow as if such rectification had been granted. 48. It has never been suggested that before the effect of the availability of specific performance can be taken into account by the FTT, the appellant must go to court 11 and actually obtain the remedy of specific performance. On the contrary, the cases show that this is not the case: see Oughtred v. IRC[1960] AC 206 , Jerome v. Kelly[2004] UKHL 25 , BMBF (No 24) Limited v. IRC[2002] STC 1450 and HSP Financial Planning Limited v. HMRC[2011] UKFTT 106 (TC) . A tribunal such as the FTT must however take into account all the factors that the Court would in deciding whether specific performance would be available, such as whether damages would be inadequate, whether specific performance would require constant supervision, whether the appellant is ready, willing and able to perform, hardship and so on. 49. I am told that the cases in this context are all specific performance cases; equity treats a specifically enforceable contract to do a thing as if it were already done: see Walsh v. Lonsdale(1882) 21 Ch D 9 at 14, Oughtred at 227, Neville v. Wilson[1997] Ch 144 at 157. 50. One issue is therefore whether the same principle applies to rectification as it does to specific performance, although the FTT made no direct reference to specific performance. Mr Davey said that it does not, but without to my mind giving any convincing or principled reason as to why not. As specific performance is also a discretionary remedy I agree with Mr Firth that there is no relevant distinction between specific performance and rectification for present purposes.”
“34. … If the exercise of the jurisdiction is discretionary (as Kay LJ undoubtedly said it was) it must follow that if as a matter of discretion relief is refused the impugned transaction will stand. If it stands it will have the effect it purports to have. I do not see how such a result is possible unless the impugned transaction is voidable rather than void ab initio.”
“14…the Tribunal is a creature of statute law and its jurisdiction is circumscribed by that law.”