One minute with barrister Keith Gordon (Temple Tax Chambers).
What’s keeping you busy at work?
I am preparing for a number of hearings I have in the coming months. In addition, the recent decision in the Lorraine Kelly case (Albatel) is generating a fair bit of interest.
Of all the tax cases being appealed, which one do you have your eye on?
The case of Tooth is one that I am looking out for. I am interested to see how the Court of Appeal addresses the question of ‘staleness’ in the context of discovery assessments. Although HMRC claims never to have accepted the point, the term first arose from HMRC’s counsel’s submissions in Corbally-Stourton in 2008 and it was this which led to the point being pursued in Charlton and Pattullo.
I am also hoping that the case will give some clear guidance on the meaning of ‘deliberate conduct’ because, in my view, HMRC has to date taken a rather optimistic approach to the test.
If you could make one change to tax, what would it be?
If you’ll permit me three…
Fewer Finance Bills and each subject to greater Parliamentary scrutiny (including from the House of Lords).
Taxpayers to be entitled to make judicial review challenges in the First-tier Tribunal. There should be an effective remedy available to all when there are public law breaches by HMRC.
The right to propose ten more changes.
In a letter to FST Mel Stride, you suggested that HMRC misled the Treasury over the loan charge. What did you mean by that?
In none of the early public statements made in support of the loan charge was there any acknowledgement by HMRC that it had simply failed to take effective and timely action to prevent the widespread use of loan arrangements by contractors. Had HMRC taken action at the right time, there would have been no need for the loan charge. It is only because HMRC is seeking to make up for its previous failings that the loan charge was needed, with its retrospective effect going back 20 years, thereby treating contractors in the same way as those who have deliberately defrauded the tax system. In addition, HMRC also refused to recognise that most people affected by the loan charge were simply being paid to do their jobs (often for government departments, including HMRC) and were generally given the impression that the arrangements were tax-compliant. HMRC’s failure to act sooner only reinforced this view in the minds of the contractors.
What’s more, it’s clear that HMRC added irrelevant facts to ministerial briefings, so as to obfuscate the issues (for example, the repeated suggestions that the loan arrangements amounted to ‘evasion’ and had led to more than 15 criminal convictions, which is simply untrue – as HMRC has only latterly admitted).
If HMRC was telling only half the story to the public, there was every chance that it was not being fully candid with the Treasury ministers. Of course, it is possible that the ministers wished to press ahead in full knowledge of all the facts. However, I wished to give the ministers a let-out, so that they could reconsider the policy and claim to be newly aware of new facts.
You’ve played a prominent role challenging discovery assessments. What are the key issues that come up time and again?
Most of the ingredients for a discovery assessment recur frequently as issues that need to be addressed. However, the question of discovery itself remains particularly relevant (partly because for about 15 years it was largely ignored by both practitioners and HMRC). Many HMRC officers still think that they can satisfy the time limits by making a ‘protective assessment’ without realising that they must still have made a discovery.
Finally, tell us something about yourself.
I enjoy relaxing with my family, either reading, solving a logic puzzle or playing a game.
One minute with barrister Keith Gordon (Temple Tax Chambers).
What’s keeping you busy at work?
I am preparing for a number of hearings I have in the coming months. In addition, the recent decision in the Lorraine Kelly case (Albatel) is generating a fair bit of interest.
Of all the tax cases being appealed, which one do you have your eye on?
The case of Tooth is one that I am looking out for. I am interested to see how the Court of Appeal addresses the question of ‘staleness’ in the context of discovery assessments. Although HMRC claims never to have accepted the point, the term first arose from HMRC’s counsel’s submissions in Corbally-Stourton in 2008 and it was this which led to the point being pursued in Charlton and Pattullo.
I am also hoping that the case will give some clear guidance on the meaning of ‘deliberate conduct’ because, in my view, HMRC has to date taken a rather optimistic approach to the test.
If you could make one change to tax, what would it be?
If you’ll permit me three…
Fewer Finance Bills and each subject to greater Parliamentary scrutiny (including from the House of Lords).
Taxpayers to be entitled to make judicial review challenges in the First-tier Tribunal. There should be an effective remedy available to all when there are public law breaches by HMRC.
The right to propose ten more changes.
In a letter to FST Mel Stride, you suggested that HMRC misled the Treasury over the loan charge. What did you mean by that?
In none of the early public statements made in support of the loan charge was there any acknowledgement by HMRC that it had simply failed to take effective and timely action to prevent the widespread use of loan arrangements by contractors. Had HMRC taken action at the right time, there would have been no need for the loan charge. It is only because HMRC is seeking to make up for its previous failings that the loan charge was needed, with its retrospective effect going back 20 years, thereby treating contractors in the same way as those who have deliberately defrauded the tax system. In addition, HMRC also refused to recognise that most people affected by the loan charge were simply being paid to do their jobs (often for government departments, including HMRC) and were generally given the impression that the arrangements were tax-compliant. HMRC’s failure to act sooner only reinforced this view in the minds of the contractors.
What’s more, it’s clear that HMRC added irrelevant facts to ministerial briefings, so as to obfuscate the issues (for example, the repeated suggestions that the loan arrangements amounted to ‘evasion’ and had led to more than 15 criminal convictions, which is simply untrue – as HMRC has only latterly admitted).
If HMRC was telling only half the story to the public, there was every chance that it was not being fully candid with the Treasury ministers. Of course, it is possible that the ministers wished to press ahead in full knowledge of all the facts. However, I wished to give the ministers a let-out, so that they could reconsider the policy and claim to be newly aware of new facts.
You’ve played a prominent role challenging discovery assessments. What are the key issues that come up time and again?
Most of the ingredients for a discovery assessment recur frequently as issues that need to be addressed. However, the question of discovery itself remains particularly relevant (partly because for about 15 years it was largely ignored by both practitioners and HMRC). Many HMRC officers still think that they can satisfy the time limits by making a ‘protective assessment’ without realising that they must still have made a discovery.
Finally, tell us something about yourself.
I enjoy relaxing with my family, either reading, solving a logic puzzle or playing a game.
