“Her Majesty’s Revenue and Customs are to have such functions as the Treasury may direct in relation to coronavirus or coronavirus disease.”
“71 Signatures of Treasury Commissioners (1)Section 1 of the Treasury Instruments (Signature) Act 1849 (instruments etc required to be signed by the Commissioners of the Treasury) has effect as if the reference to two or more of the Commissioners of Her Majesty’s Treasury were to one or more of the Commissioners. (2) For the purposes of that reference, a Minister of the Crown in the Treasury who is not a Commissioner of Her Majesty’s Treasury is to be treated as if the Minister were a Commissioner of Her Majesty’s Treasury.”
“1. This direction applies to Her Majesty’s Revenue and Customs. 2. This direction requires Her Majesty’s Revenue and Customs to be responsible for the payment and management of amounts to be paid under the scheme set out in the Schedule to this direction (the Coronavirus Job Retention Scheme). 3. This direction has effect for the duration of the scheme.”
“2.1 The purpose of the CJRS is to provide for payments to be made to employers on a claim made in respect of them incurring costs of employment in respect of furloughed employees arising from the health, social and economic emergency in the United Kingdom resulting from coronavirus and coronavirus disease.”
“on or before making a relevant payment to an employee, a Real Time Information employer must deliver to HMRC the information specified in Schedule A1 in accordance with this regulation.”
“(a) relate to an employee (i) to whom the employer made a payment of earnings in the tax year 2019-20 which is shown in a return under Schedule A1 to the PAYE Regulations that is made on or before a day that is a relevant CJRS day, (ii) in relation to whom the employer has not reported a date of cessation of employment on or before that date, and (iii) who is a furloughed employee (see paragraph 6), and (b) meets the relevant conditions in paragraphs 7.1 to 7.15 in relation to the furloughed employee.”
“13.1 For the purposes of CJRS – (a) a day is a relevant CJRS day if that day is – (i)28 February 2020 , or (ii)19 March 2020 .” (i)28 February 2020 , or (ii)19 March 2020 .”
“Qualifying costs – further conditions 7.1 Costs of employment meet the conditions of this paragraph if: (a) they relate to the payment of earnings to an employee during a period in which the employee is furloughed, and (b) the employee is being paid (i)£2500 or more per month (or, if the employee is paid daily or on some other periodic basis, the appropriate pro-rata), or (ii) where the employee is being paid less than the amounts set out in paragraph 7.1(b)(i), the employee is being paid an amount equal to at least 80% of the employee’s reference salary. 7.2 Except in relation to a fixed rate employee, the reference salary of an employee or a person treated as an employee for the purposes of CJRS by virtue of paragraph 13.3(a) (member of a limited liability partnership) is the greater of – (a) the average monthly (or daily or other appropriate pro-rata) amount paid to the employee for the period comprising the tax year 2019-20 (or, if less, the period of employment) before the period of furlough began, and (b) the actual amount paid to the employee in the corresponding calendar period in the previous year.” 7.3 In calculating the employee’s reference salary for the purpose of paragraphs 7.2 and 7.7, no account is to be taken of anything which is not regular salary or wages.” (a) they relate to the payment of earnings to an employee during a period in which the employee is furloughed, and (b) the employee is being paid (i)£2500 or more per month (or, if the employee is paid daily or on some other periodic basis, the appropriate pro-rata), or (ii) where the employee is being paid less than the amounts set out in paragraph 7.1(b)(i), the employee is being paid an amount equal to at least 80% of the employee’s reference salary. (a) the average monthly (or daily or other appropriate pro-rata) amount paid to the employee for the period comprising the tax year 2019-20 (or, if less, the period of employment) before the period of furlough began, and (b) the actual amount paid to the employee in the corresponding calendar period in the previous year.”
“7.5 The relevant matters are: (a) the performance of any part of any business of the employer or any business of a person connected with the employer (b) the contribution made by the employee to the performance of, or any part of the business (c) the performance by the employee of any duties of the employment, and (d) any similar considerations or otherwise payable at the discretion of the employer or any other person (such as a gratuity).” (a) the performance of any part of any business of the employer or any business of a person connected with the employer (b) the contribution made by the employee to the performance of, or any part of the business (c) the performance by the employee of any duties of the employment, and (d) any similar considerations or otherwise payable at the discretion of the employer or any other person (such as a gratuity).”
“7.6 A person is fixed rate employee if- (a) The person is an employee or treated as an employee for the purposes of CJRS by virtue of paragraph 13.3(a) (member of a limited liability partnership), (b) The person is entitled under their contract to be paid an annual salary, (c) The person is entitled under their contract to be paid that salary in respect of a number of hours in a year whether those hours are specified in or ascertained in accordance with their contract (“the basic hours”), (d) The person is not entitled under their contract to a payment in respect of the basic hours other than an annual salary, (e) The person is entitled under their contract to be paid, where practicable and regardless of the number of hours actually worked in a particular week or month in equal weekly, multiple of weeks or monthly instalments (“the salary period”), and (f) The basic hours worked in a salary do not normally vary according to business, economic or agricultural seasonal considerations.” (a) The person is an employee or treated as an employee for the purposes of CJRS by virtue of paragraph 13.3(a) (member of a limited liability partnership), (b) The person is entitled under their contract to be paid an annual salary, (c) The person is entitled under their contract to be paid that salary in respect of a number of hours in a year whether those hours are specified in or ascertained in accordance with their contract (“the basic hours”), (d) The person is not entitled under their contract to a payment in respect of the basic hours other than an annual salary, (e) The person is entitled under their contract to be paid, where practicable and regardless of the number of hours actually worked in a particular week or month in equal weekly, multiple of weeks or monthly instalments (“the salary period”), and (f) The basic hours worked in a salary do not normally vary according to business, economic or agricultural seasonal considerations.”
“The reference salary of a fixed rate employee is the amount payable to the employee in the latest salary period ending on or before19 March 2020 (but disregarding anything which is not regular salary or wages as described in paragraph 7.3).”
“8Charge if person not entitled to coronavirus support payment (1) A recipient of an amount of a coronavirus support payment is liable to income tax under this paragraph if the recipient is not entitled to the amount in accordance with the scheme under which the payment was made. ... (5) The amount of income tax chargeable under this paragraph is the amount equal to so much of the coronavirus support payment (a) as the recipient is not entitled to, and (b) as has not been repaid to the person who made the coronavirus support payment.” 9 Assessments of income tax chargeable under paragraph 8 (1) If an officer of Revenue and Customs considers (whether on the basis of information or documents obtained by virtue of the exercise of powers under Schedule 36 to FA 2008 or otherwise) that a person has received an amount of a coronavirus support payment to which the person is not entitled, the officer may make an assessment in the amount which ought in the officer's opinion to be charged under paragraph 8. (2) An assessment under sub-paragraph (1) may be made at any time, but this is subject to sections 34 and 36 of TMA 1970. (3) Parts 4 to 6 of TMA 1970 contain other provisions that are relevant to an assessment under sub-paragraph (1) (for example, section 31 makes provision about appeals and section 59B(6) makes provision about the time to pay income tax payable by virtue of an assessment).” (a) as the recipient is not entitled to, and (b) as has not been repaid to the person who made the coronavirus support payment.”
“(6) If, on an appeal notified to the tribunal, the tribunal decides ... (c) that the appellant is overcharged by an assessment other than a self- assessment, the assessment shall be reduced accordingly, but otherwise the assessment shall stand good (7) If, on an appeal notified to the tribunal, the tribunal decides- … (c) that the appellant is undercharged by an assessment other than a self- assessment, the assessment shall be increased accordingly, but otherwise the assessment shall stand good” (c) that the appellant is overcharged by an assessment other than a self- assessment, the assessment shall be reduced accordingly, but otherwise the assessment shall stand good (c) that the appellant is undercharged by an assessment other than a self- assessment, the assessment shall be increased accordingly, but otherwise the assessment shall stand good”
“the gross amount of earnings paid or reasonably expected to be paid by the employer to an employee…”
“The amount to be paid to reimburse the gross amount of earnings must… not exceed the lower of£2,500 per month, and the amount equal to 80% of the employees reference salary...”
“(a) relate to an employee (i) to whom the employer made a payment of earnings in the tax year 2019-20 which is shown in a return under Schedule A1 to the PAYE Regulations that is made on or before a day that is a relevant CJRS day, (ii) in relation to whom the employer has not reported a date of cessation of employment on or before that date, and (iii) who is a furloughed employee (see paragraph 6), and (b) meets the relevant conditions in paragraphs 7.1 to 7.15 in relation to the furloughed employee.”
“Qualifying employers 3.1 An employer may make a CJRS claim if the employer has a qualifying PAYE scheme. 3.2 An employer has a qualifying PAYE scheme if- (a) at the time of making the CJRS claim, the employer has a PAYE scheme registered on HMRC’s real time information system for PAYE, and (b) that scheme was registered as described in paragraph 3.2(a) on or before19 March 2020 .” (a) at the time of making the CJRS claim, the employer has a PAYE scheme registered on HMRC’s real time information system for PAYE, and (b) that scheme was registered as described in paragraph 3.2(a) on or before19 March 2020 .”
“ Qualifying costs 5. The costs of employment in respect of which an employer may make a CJRS claim are costs which- (a) relate to an employee- (i) to whom the employer made a payment of earnings in the tax year 2019-20 which is shown in a return under Schedule A1 to the PAYE Regulations that is made on or before a day that is a relevant CJRS day, (ii) in relation to whom the employer has not reported a date of cessation of employment on or before that day and (iii) who is a furloughed employee (see paragraph 6.1), and (b) meet the relevant conditions in paragraphs 7.1 to 7.15 in relation to the furloughed employee.” (a) relate to an employee- (i) to whom the employer made a payment of earnings in the tax year 2019-20 which is shown in a return under Schedule A1 to the PAYE Regulations that is made on or before a day that is a relevant CJRS day, (ii) in relation to whom the employer has not reported a date of cessation of employment on or before that day and (iii) who is a furloughed employee (see paragraph 6.1), and (b) meet the relevant conditions in paragraphs 7.1 to 7.15 in relation to the furloughed employee.”
“on or before making a relevant payment to an employee, a Real Time Information employer must deliver to HMRC the information specified in Schedule A1 in accordance with this regulation.”
“13.1 For the purposes of CJRS – (a) a day is a relevant CJRS day if that day is – (i)28 February 2020 , or (ii)19 March 2020 .” (i)28 February 2020 , or (ii)19 March 2020 .”
“7.7 The reference salary of a fixed rate employee is the amount payable to the employee in the latest salary period ending on or before19 March 2020 (but disregarding anything which is not regular salary or wages as described in paragraph 7.3).”
“3.1 This contract of employment begins on1 March 2020 … 6.4 Your basic salary will be£26,250 per annum … 6.4 You will be paid your salary through BACs to your bank account on the 1st day of each month, after deductions of Income Tax (PAYE), National Insurance and any other deduction required by law.”
“7.2 Except in relation to a fixed rate employee, the reference salary of an employee or a person treated as an employee for the purposes of CJRS by virtue of paragraph 13.3(a) (member of a limited liability partnership) is the greater of- (a) the average monthly (or daily or other appropriate pro-rata) amount paid to the employee for the period comprising the tax year 2019-20 (or, if less, the period of employment) before the period of furlough began, and (b) the actual amount paid to the employee in the corresponding calendar period in the previous year.” (a) the average monthly (or daily or other appropriate pro-rata) amount paid to the employee for the period comprising the tax year 2019-20 (or, if less, the period of employment) before the period of furlough began, and (b) the actual amount paid to the employee in the corresponding calendar period in the previous year.”
“In calculating the employee’s reference salary for the purposes of paragraphs 7.2 and 7.7, no account is to be taken of anything which is not regular salary or wages.”
“The taxpayer is saying that an assessment ought not to have been made. But in saying that, he is not, under this head of complaint, saying that in this case there do not exist in relation to him all the facts which are prescribed by the legislation as facts which give rise to a liability to tax. What he is saying is that, because of some further facts, it would be oppressive to enforce that liability. In my view that is a matter in respect of which, if the facts are as alleged by the taxpayer, the remedy provided is by way of judicial review.”
“41. There is in our judgment no room for doubt that the First-tier Tribunal does not have any judicial review jurisdiction. That was made abundantly clear by the House of Lords in Customs and Excise Commissioners v J H Corbitt (Numismatists) Ltd[1981] AC 22 . That case related to the Value Added Tax Tribunals rather than the First-tier Tribunal, but they too were a creature of statute with no inherent jurisdiction, and the relevant principles are identical. Lord Lane (with whom the majority agreed) said, in what remains the classic statement on the point: “Assume for the moment that the tribunal has the power to review the commissioners’ discretion. It could only properly do so if it were shown the commissioners had acted in a way which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. If it had been intended to give a supervisory jurisdiction of that nature to the tribunal one would have expected clear words to that effect in the [Finance Act 1972 ]. But there are no such words to be found. Section 40(1) sets out nine specific headings under which an appeal may be brought and seems by inference to negative the existence of any general supervisory jurisdiction.” “Assume for the moment that the tribunal has the power to review the commissioners’ discretion. It could only properly do so if it were shown the commissioners had acted in a way which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. If it had been intended to give a supervisory jurisdiction of that nature to the tribunal one would have expected clear words to that effect in the [Finance Act 1972 ]. But there are no such words to be found. Section 40(1) sets out nine specific headings under which an appeal may be brought and seems by inference to negative the existence of any general supervisory jurisdiction.”
“….in so far as the complaint is not focused upon the consequences of the statute but rather upon the conduct of the commissioners then it is clear that the tribunal had no jurisdiction. Its jurisdiction is limited to decisions of the commissioners and it has no jurisdiction in relation to supervision of their conduct.”
“In our view, the FTT does not have jurisdiction to give effect to any legitimate expectation which Mr Noor may be able to establish in relation to any credit for input tax….In contrast, a person may claim a right based on legitimate expectation which goes behind his entitlement ascertained in accordance with the VAT legislation (in that sense); in such a case, the legitimate expectation is a matter for remedy by judicial review in the administrative court; the FTT has no jurisdiction to determine the disputed issue in the context of an appeal under s83.”
“401. Our reasons for saying that the Tribunal has no jurisdiction to give effect to the Extra-Statutory Concessions stems from the recent decision of the Upper Tribunal in HMRC v Hok Ltd [2012] UK Upper Tribunal 363 (TCC) (“Hok”) a decision of Warren J and Judge Bishopp. Mr Vajda has relied on the decision of Sales J in Oxfam v. HMRC[2009] EWHC 3078 (Ch) ,[2010] STC 686 (“Oxfam”), paragraphs 61 to 79 to demonstrate that the Tribunal does have jurisdiction. However, that decision turned on a construction of 83(1)(c) of theValue Added Tax Act 1994 which Sales J held gave jurisdiction to the VAT Tribunal to deal with legitimate expectation in the context of an appeal as to the amount of input tax. It lends no support at all to the view that the Tribunal has a general jurisdiction to deal with public law matters, whether in the context of direct tax or indirect tax, in particular to require, in the exercise of some sort of supervisory jurisdiction, HMRC to give effect to a concession. The suggestion that there is a jurisdiction in the context of direct tax is refuted by the decision in Hok.” ... 142. The statutory jurisdiction conferred upon the FTT by s.3 TCEA 2007 is in our view to be read as exclusive and the closure notice appeals under Schedule 1A TMA do not extend to what are essentially parallel common law challenges to the fairness of the treatment afforded to the taxpayer. The extra-statutory concession is, by definition, a statement as to how HMRC will operate in the circumstances there specified and its failure to do so denies the legitimate expectation of taxpayers who had been led to expect that they would be treated in accordance with it... 143. We therefore consider that the reasoning of Sales J in Oxfam v HMRC has no application to the statutory jurisdiction under s.3 TCEA 2007 in the sense of giving to the FtT and the Upper Tribunal jurisdiction to decide the common law question of whether HMRC has properly operated the extra-statutory concession.” “401. Our reasons for saying that the Tribunal has no jurisdiction to give effect to the Extra-Statutory Concessions stems from the recent decision of the Upper Tribunal in HMRC v Hok Ltd [2012] UK Upper Tribunal 363 (TCC) (“Hok”) a decision of Warren J and Judge Bishopp. Mr Vajda has relied on the decision of Sales J in Oxfam v. HMRC[2009] EWHC 3078 (Ch) ,[2010] STC 686 (“Oxfam”), paragraphs 61 to 79 to demonstrate that the Tribunal does have jurisdiction. However, that decision turned on a construction of 83(1)(c) of theValue Added Tax Act 1994 which Sales J held gave jurisdiction to the VAT Tribunal to deal with legitimate expectation in the context of an appeal as to the amount of input tax. It lends no support at all to the view that the Tribunal has a general jurisdiction to deal with public law matters, whether in the context of direct tax or indirect tax, in particular to require, in the exercise of some sort of supervisory jurisdiction, HMRC to give effect to a concession. The suggestion that there is a jurisdiction in the context of direct tax is refuted by the decision in Hok.”
“The question of jurisdiction can only be determined by reference to the particular statutory scheme in question that governs the tax tribunal’s jurisdiction.”
“There is no material difference between the right of appeal set out in s31 of TMA 1970 … and that set out ins83(1)(c) of the Value Added Tax Act 1994 . All the statutory provisions confer a right of appeal against specified HMRC decisions and none makes any reference to matters other than the statutory provisions dealing with the taxes concerned. If Parliament did not intend s83(1)(c) to give the Tribunal jurisdiction to consider matters other than a person’s right to credit under VAT legislation, I see no reason why Parliament could have intended it to consider, on an appeal under s31 of TMA 1970 … questions of … legitimate expectation which go beyond the relevant statutory provisions. If anything, the provisions of s50(6) and s50(7) of TMA 1970 make this even clearer in the context of this appeal than it was in the VAT appeal being considered in Noor, as those sections emphasise that the Tribunal’s focus should be on the amount of the assessments being made and leave no room for a consideration of whether considerations of legitimate expectation … prevent HMRC from making the assessments.”
“74. I have added emphasis because whether or not there is jurisdiction in any case turns on the language of the relevant legislation and the nature of HMRC's act or discretion; hence the conflicting arguments about discretion or the lack thereof. … 79. Many of the cases to which I was referred related to the statutory scheme in the VATA and not the TMA. Although it is a First-tier Tribunal decision, and therefore of persuasive authority only, Mr Randle relied on Judge Richards, as he then was, at paragraph 87 of Alway Sheet Metal[2017] UKFTT 198 (TC) (“ASM”). Judge Richards pointed out that the Tribunal's jurisdiction had to be determined by reference to the statutory provisions governing the appellant's appeal “as the Tribunal is a creature of statute with no inherent jurisdiction”
“If you were contractually obliged as of19th March 2020 to make the payments, then they should be included in the amount calculated. If you aren’t certain of this contractual obligation the guidance is to seek professionally qualified advice”
“Q. Was the RTI submission for the increased pay rate submitted on or before19th March 2020 ? A. What is RTI? My accountant processed the wages for us for the March pay.”
“RTI is “Real Time Information” submitted to HMRC whenever wages are paid. Were these payments made before the end of March?”
“The primary duty of the Revenue is to collect taxes which are properly payable in accordance with current legislation but it is also responsible for managing the tax system: sees1 of the Taxes Management Act 1970 . Inherent in the duty of the management is a wide discretion. Although the discretion is bounded by the primary duty (see R (on the application of Wilkinson) v IRC[2005] UKHL 30 at [21],[2006] STC 270 at [21], [2005] I WLR 1718 per Lord Hoffman…”