“(1) If a person who has paid income tax or capital gains tax under an assessment (whether a self-assessment or otherwise) alleges that the assessment was excessive by reason of some error or mistake in a return, he may by notice in writing at any time not later than five years 10 after the 31st January next following the year of assessment to which the return relates, make a claim to the Board for relief. (2) On receiving the claim the Board shall inquire into the matter and shall, subject to the provisions of this section, give by way of repayment such relief … in respect of the error or mistake as is 15 reasonable and just … (2A) No relief shall be given under this section in respect of – (a) an error or mistake as to the basis on which the liability of the claimant ought to have been computed where the return was in fact made on the basis or in accordance with the practice generally 20 prevailing at the time when it was made; or (b) an error or mistake in a claim which is included in the return. (3) In determining the claim the Board shall have regard to all the relevant circumstances of the case, and in particular shall consider whether the granting of relief would result in the exclusion from charge 25 to tax of any part of the profits of the claimant, and for this purpose the Board may take into consideration the liability of the claimant and assessments made on him in respect of chargeable periods other than that to which the claim relates. (4) If any appeal is brought from the decision of the Board on the 30 claim, the tribunal shall determine the appeal in accordance with the principles to be followed by the Board in determining claims under this section. (4A) The determination of the tribunal of an appeal under subsection (4) shall be final and conclusive (notwithstanding the provisions of 35 sections 11 and 13 of the TCEA 2007) except on a point of law arising in connection with the computation of profits. (5) in this section “profits”- (a) in relation to income tax, means income, and (b) in relation to capital gains tax, means chargeable gains, 40 …”
“The right to require a case to be stated on a point of law is not the same right as is given under the ordinary provision of the Income Tax legislation under which any point of law can be raised; it is strictly circumscribed.” 25 14. Accordingly at page 307 of his judgment Lord Greene MR referred to the fact that for a number of years the taxpayer had deliberately included the income concerned under the wrong Schedule and that the question was whether such deliberate wrong entry was an “error or mistake” within the meaning of the provision. His answer was as follows: 30 “The question is undoubtedly a question of law. It is a question of the true construction of Sub-section (1), and may be formulated in this way: Whether or not, on the true construction of the words “error or mistake” in that Sub-section, the Appellants are entitled to maintain a claim; but the fact that it is a question of construction, and therefore a question of law, did not entitle the Appellants to ask for a Case unless the question of 35 law arose in connection with the computation of profits or income. It was argued by Mr Burrows that the question did so arise, but, in my opinion, that argument will not bear examination. The question has nothing to do with the computation of profits or income. There was no dispute as to the proper method of computation of profits or income with regard to this item at all. The profits under Schedule D, as computed for Income Tax 40 purposes, were not in dispute. The inclusion of this particular item was wrong, and I cannot see how any point of law in connection with the computation of profits or income can be said to arise. It is a pure question of construction of the Sub-section in relation to 5 the admitted fact that a wrong entry was made with full knowledge that it was wrong, and deliberately.”
“57. We have not been able to establish the exact amount that the Appellant was paid 10 nor the amount deducted from that pay nor whether the full amount deducted was used to fund the self-assessment liabilities. We are as clear as we can be that the PAYE liability would have exceeded the tax paid on the self-assessment returns. If the Appellant succeeds in this Appeal he will receive a windfall in the amount of the tax he paid. If he fails he will have paid tax on the basis of income returned by him in returns 15 signed by him and computed on a basis likely to have been more generous than if that same income had been computed on the basis he was an employee. We have concluded that it is just and reasonable to deny relief altogether. This is because there is such uncertainty over the facts of this case, the amounts the Appellant was paid, the presence or otherwise of Dynaudio, delays on both sides at relevant times and the 20 probability that the tax paid was less than it might have been (possibly far less). All this makes it just and reasonable to deny relief. We dismiss the appeal.”
“On the interpretation of s 33(4), however, I have read the judgment of Robert Walker LJ and I have nothing to add to his reasons for upholding the decision of the judge, with which I agree. This does not mean that an aggrieved taxpayer has no potential 30 right of redress. One of the reasons for the overhaul in the procedures for judicial review was to facilitate access to the supervisory jurisdiction of the High Court in cases where inferior tribunals, such as the Special Commissioners, were said to have made errors of law in relation to which no statutory rights of redress were available. The judges of the Administrative Court now adopt a benevolent approach to the 35 interpretation of the time limits for judicial review applications in cases where the taxpayer was concerned first with exhausting his statutory remedies. There is also, as I have made clear, a private law action available through the ordinary courts, although this seems a less than ideal forum for complicated disputes about tax law.”