APNs and Follower Notices

And, downward, it flows on; and when that ditch,
ill-fated and accursed, grows wider, it
finds, more and more, the dogs becoming wolves.

                                                                                           – Purgatorio, Canto XIV

“Hey, hey, hey, baby I got your money, don’t you worry…..”

                                                                         – Got Your Money, Pop Song, 1999

1. Accelerated Payment and Follower Notices: Part 4 of the Finance Act 2014

These were introduced following a consultation in 2013. However, the draft did not appear till the Finance Bill itself.

Follower notices and APN are related but not quite the same thing. A Follower Notice in effect allows for a penalty (i.e. an additional amount) where, in the course of an ongoing enquiry, the taxpayer does not capitulate in light of a ruling which in HMRC’s opinion is determinative of the issue concerned.

An APN seeks to bring the payment of the disputed tax itself forward. The use of the word ‘accelerated’ is misleading here. You can only accelerate something which is headed in your direction in the first place. (You could import a cow from the grazing fields of Montana and let it lose on me but I feel that it would be an exaggeration to call that an acceleration…) Anyway, the regime is better described as an assumption of the tax treatment being in HMRC’s favour. The APN regime comes with its own penalties for non-payment. The issue of a Follower Notice constitutes one of the three gateways into the APN regime.

Chapter 2: Follower Notices

2. When can a Follower Notice be given?

204 Circumstances in which a follower notice may be given

(1) HMRC may give a notice (a “follower notice”) to a person (“P”) if Conditions A to D are met.

(2) Condition A is that— (a) a tax enquiry is in progress into a return or claim made by P in relation to a relevant tax, or (b) P has made a tax appeal (by notifying HMRC or otherwise) in relation to a relevant tax, but that appeal has not yet been— (i) determined by the tribunal or court to which it is addressed, or (ii) abandoned or otherwise disposed of.

(3) Condition B is that the return or claim or, as the case may be, appeal is made on the basis that a particular tax advantage (“the asserted advantage”) results from particular tax arrangements (“the chosen arrangements”).

(4) Condition C is that HMRC is of the opinion that there is a judicial ruling which is relevant to the chosen arrangements.

(5) Condition D is that no previous follower notice has been given to the same person (and not withdrawn) by reference to the same tax advantage, tax arrangements, judicial ruling and tax period.

Time limits:

(6) A follower notice may not be given after the end of the period of 12 months beginning with the later of—

(a) the day on which the judicial ruling mentioned in Condition C is made, and (b) the day the return or claim to which subsection (2)(a) refers was received by HMRC or (as the case may be) the day the tax appeal to which subsection (2)(b) refers was made.

3. Judicial Ruling:

205“Judicial ruling” and circumstances in which a ruling is “relevant”

(1) This section applies for the purposes of this Chapter.

(2) “Judicial ruling” means a ruling of a court or tribunal on one or more issues.

(3) A judicial ruling is “relevant” to the chosen arrangements if— (a) it relates to tax arrangements, (b) the principles laid down, or reasoning given, in the ruling would, if applied to the chosen arrangements, deny the asserted advantage or a part of that advantage, and (c) it is a final ruling.

(4) A judicial ruling is a “final ruling” if it is— (a) a ruling of the Supreme Court, or (b) a ruling of any other court or tribunal in circumstances where— (i) no appeal may be made against the ruling, (ii) if an appeal may be made against the ruling with permission, the time limit for applications has expired and either no application has been made or permission has been refused, (iii) if such permission to appeal against the ruling has been granted or is not required, no appeal has been made within the time limit for appeals, or (iv) if an appeal was made, it was abandoned or otherwise disposed of before it was determined by the court or tribunal to which it was addressed.

(5) Where a judicial ruling is final by virtue of sub-paragraph (ii), (iii) or (iv) of subsection (4)(b), the ruling is treated as made at the time when the sub-paragraph in question is first satisfied.

The ruling needs to have been final (Supreme Court) or else not appealed for whatever reason or capable of being appealed. There’s something strange about this. If someone else’s appeal is ongoing, we’ll wait for it. But in the case of our own appeal we may not and are required to pay up now.

The question arises as to when a ruling would be ‘relevant’ for the purposes of subsection (3). The following points arise. First, as a matter of English common law, there is, of course, no compunction on a judge or tribunal to give reasons. The judge may apply reasoning but where this is not expressed, the position is unclear. Second, the ruling would only be relevant to the extent that it was a ‘holding’ rather than a pure ‘finding’ of particular facts: this follows from the use of the word ‘principle’ and the general tenor of the section. Likewise, the ruling would only be relevant to the extent that the facts were the same (or materially similar) in both cases. For instance, in Philip Boyle, the purported making of loans were treated as outright payments whereas in cases such as Sempra, Dextra and Murray Holdings, the purported loans were recognised as just that – loans. The difference lay in the facts – or rather the findings of fact, which in turn hinged on the delicate weighing up in court of matters such as the credibility of the witnesses and their understanding of the arrangements. Third, problems will arise when a judge accepts a proposition expounded by one party without any reason – this does happen (and sometimes with the mistaken consent of the other party). Fourth, the interpretation given to a word or phrase in a decision may be context specific. An examination of Stroud’s dictionary indicates that it is more often than not futile to attempt to transplant the meaning or connotation conferred on a particular word as found in one provision to the same word when found in another (I find that dictionary definitions often simply provide a useful starting point for judges but one they are happy to stray away from at the behest of the context). Applications of the GAAR (or, say, discussions on the old common law test of residence or the present test of domicile or particularly widely worded provisions such as TiS or section 75A FA 03) will be resistant to giving up nuggets to be catapulted at other taxpayers. Fifth, the correct arguments may not have been raised – for an obvious instance, the question of the engagement of EU Treaty Freedoms was not raised in TAA cases until 2014. Sixth, the position where there is an out-of-court settlement (in particular, on appeal by the taxpayer but before that appeal is heard by the higher tier court or tribunal) does not appear to be taken into account. In certain cases, there may now be some incentive for appeals to be made by taxpayers – especially connected taxpayers – where they would not before (or for HMRC to settle so as to crystallise a decision which favours them). Seventh, the prospect that a court may expressly reverse an earlier decision is not factored in (for an instance of this occurring in tax, see my article on Congreve in TAA and the Overkill Defence). Eight, the question of the ‘relevance’ of a decision does not take into account the inherent pluralism of the decision-making process and in particular the fact that a decision will often consist of the pronouncements of multiple judges. There are decisions where, say, three judges give three different reasons for arriving at a decision, the fourth abstains and the fifth appears to agree with all the others.

This is just a list of potential problems which occur to the writer at present – in practice, there may be any number of reasons as to why one reliance on one ruling may not be appropriate in another case. One could write a book on it and it might be said that Bennion has already done so.

4. Review by HMRC

207 Representations about a follower notice

(1) Where a follower notice is given under section 204, P has 90 days beginning with the day that notice is given to send written representations to HMRC objecting to the notice on the grounds that— (a) Condition A, B or D in section 204 was not met, (b) the judicial ruling specified in the notice is not one which is relevant to the chosen arrangements, or (c) the notice was not given within the period specified in subsection (6) of that section.

(2) HMRC must consider any representations made in accordance with subsection (1).

(3) Having considered the representations, HMRC must determine whether to— (a) confirm the follower notice (with or without amendment), or (b) withdraw the follower notice, and notify P accordingly.

The right representations may result in the notice being withdrawn. There is a 90 day period within which to seek review. This review is desirable because, apart from the time allowance, it is questionable whether a judicial review can really be sought where another recourse is available.

5. Penalty

208 Penalty if corrective action not taken in response to follower notice

(1) This section applies where a follower notice is given to P (and not withdrawn).

(2) P is liable to pay a penalty if the necessary corrective action is not taken in respect of the denied advantage (if any) before the specified time.

(3) In this Chapter “the denied advantage” means so much of the asserted advantage (see section 204(3)) as is denied by the application of the principles laid down, or reasoning given, in the judicial ruling identified in the follower notice under section 206(a).

(4) The necessary corrective action is taken in respect of the denied advantage if (and only if) P takes the steps set out in subsections (5) and (6).

(5) The first step is that— (a) in the case of a follower notice given by virtue of section 204(2)(a), P amends a return or claim to counteract the denied advantage; (b) in the case of a follower notice given by virtue of section 204(2)(b), P takes all necessary action to enter into an agreement with HMRC (in writing) for the purpose of relinquishing the denied advantage.

(6) The second step is that P notifies HMRC— (a) that P has taken the first step, and (b) of the denied advantage and (where different) the additional amount which has or will become due and payable in respect of tax by reason of the first step being taken.

(7) In determining the additional amount which has or will become due and payable in respect of tax for the purposes of subsection (6)(b), it is to be assumed that, where P takes the necessary action as mentioned in subsection (5)(b), the agreement is then entered into.

(8) In this Chapter— • “the specified time” means— (a) if no representations objecting to the follower notice were made by P in accordance with subsection (1) of section 207, the end of the 90 day post-notice period; (b) if such representations were made and the notice is confirmed under that section (with or without amendment), the later of— (i) the end of the 90 day post-notice period, and (ii) the end of the 30 day post-representations period; • “the 90 day post-notice period” means the period of 90 days beginning with the day on which the follower notice is given; • “the 30 day post-representations period” means the period of 30 days beginning with the day on which P is notified of HMRC’s determination under section 207.

(9) No enactment limiting the time during which amendments may be made to returns or claims operates to prevent P taking the first step mentioned in subsection (5)(a) before the tax enquiry is closed (whether or not before the specified time).

(10) No appeal may be brought, by virtue of a provision mentioned in subsection (11), against an amendment made by a closure notice in respect of a tax enquiry to the extent that the amendment takes into account an amendment made by P to a return or claim in taking the first step mentioned in subsection (5)(a) (whether or not that amendment was made before the specified time).

(11) The provisions are— (a) section 31(1)(b) or (c) of TMA 1970, (b) paragraph 9 of Schedule 1A to TMA 1970, (c) paragraph 34(3) of Schedule 18 to FA 1998, (d) paragraph 35(1)(b) of Schedule 10 to FA 2003, and (e) paragraph 35(1)(b) of Schedule 33 to FA 2013.

The taxpayer has a month after the HMRC’s review to take corrective action. Corrective action means adjusting the assessment or settling with HMRC. The concept of ‘denied advantage’ may be a bone of contention in itself – as an acceptance of governing principles may not determine the entire issue.

6. Amount of penalty

209 Amount of a section 208 penalty

(1) The penalty under section 208 is 50% of the value of the denied advantage.

(2) Schedule 30 contains provision about how the denied advantage is valued for the purposes of calculating penalties under this section.

(3) Where P before the specified time— (a) amends a return or claim to counteract part of the denied advantage only, or (b) takes all necessary action to enter into an agreement with HMRC (in writing) for the purposes of relinquishing part of the denied advantage only, in subsections (1) and (2) the references to the denied advantage are to be read as references to the remainder of the denied advantage.

As noted, the ‘denied advantage’ may in itself be in dispute. There may be a reduction for co-operation:

210 Reduction of a section 208 penalty for co-operation

(1) Where— (a) P is liable to pay a penalty under section 208 of the amount specified in section 209(1), (b) the penalty has not yet been assessed, and (c) P has co-operated with HMRC, HMRC may reduce the amount of that penalty to reflect the quality of that co-operation.

(2) In relation to co-operation, “quality” includes timing, nature and extent.

(3) P has co-operated with HMRC only if P has done one or more of the following— (a) provided reasonable assistance to HMRC in quantifying the tax advantage; (b) counteracted the denied advantage; (c) provided HMRC with information enabling corrective action to be taken by HMRC; (d) provided HMRC with information enabling HMRC to enter an agreement with P for the purpose of counteracting the denied advantage; (e) allowed HMRC to access tax records for the purpose of ensuring that the denied advantage is fully counteracted.

(4) But nothing in this section permits HMRC to reduce a penalty to less than 10% of the value of the denied advantage.

The payment must be in a month of notification of the penalty: (3) A penalty under section 208 must be paid before the end of the period of 30 days beginning with the day on which the person is notified of the penalty under subsection (2).

7. Repayment of penalty:

213 Alteration of assessment of a section 208 penalty

(1) After notification of an assessment has been given to a person under section 211(2), the assessment may not be altered except in accordance with this section or on appeal.

(2) A supplementary assessment may be made in respect of a penalty if an earlier assessment operated by reference to an underestimate of the value of the denied advantage.

(3) An assessment or supplementary assessment may be revised as necessary if it operated by reference to an overestimate of the denied advantage; and, where more than the resulting assessed penalty has already been paid by the person to HMRC, the excess must be repaid.

So, once again the ‘denied advantage’ is key. Who decides if there’s been an over-estimate or an under-estimate?

8. Appeal of penalty:

214 Appeal against a section 208 penalty

(1) P may appeal against a decision of HMRC that a penalty is payable by P under section 208.

(2) P may appeal against a decision of HMRC as to the amount of a penalty payable by P under section 208.

(3) The grounds on which an appeal under subsection (1) may be made include in particular— (a) that Condition A, B or D in section 204 was not met in relation to the follower notice,

(b) that the judicial ruling specified in the notice is not one which is relevant to the chosen arrangements,

(c) that the notice was not given within the period specified in subsection (6) of that section, or…

These grounds are to be expected – as they pertain to the applicability of the Follower Notice regime. However, in addition, there’s a reasonable excuse defence too:

(d) that it was reasonable in all the circumstances for P not to have taken the necessary corrective action (see section 208(4)) in respect of the denied advantage.

The inclusion of (d) here is a revelation. At first glance, it is strange that one might be in a position where he is unable to rely on sub-paragraphs (a) to (c) (in other words, all the conditions pertaining to the applicability of the Follower Notice regime are indeed met) but where he is nonetheless excused from a penalty under the regime. ‘Reasonable’ is generally not exhaustively conceptualised for the purposes of tax legislation. However, it appears to me that the legislator is leaving open the prospect of there being an exemption from the regime even where there is otherwise a relevant judicial ruling. It strikes me that the most likely instance of such a case is where there is a reasonable argument that the relevant ruling was inadequately argued or the decision (or its application to the present case) otherwise questionable. Two other points: ‘reasonableness’ is a spectrum – so as long as there was a reason (i.e. for not having taken the corrective action) which would have appealed to the man on the Clapham Common omnibus, then the appeal would succeed notwithstanding that the tribunal would not have adopted that approach themselves. Second, reliance on counsel’s advice on complex matters is normally and quite rightly recognised as constituting a reasonable excuse.

The appeal must be made within a month of the penalty notification being given:

(4) An appeal under this section must be made within the period of 30 days beginning with the day on which notification of the penalty is given under section 211.

(5) An appeal under this section is to be treated in the same way as an appeal against an assessment to the tax concerned (including by the application of any provision about bringing the appeal by notice to HMRC, about HMRC’s review of the decision or about determination of the appeal by the First-tier Tribunal or Upper Tribunal).

Payment is deferred until after the appeal is determined.

Chapter 3: Accelerated Payment Notices

9. When can an APN be given?

219 Circumstances in which an accelerated payment notice may be given

(1) HMRC may give a notice (an “accelerated payment notice”) to a person (“P”) if Conditions A to C are met.

(2) Condition A is that— (a) a tax enquiry is in progress into a return or claim made by P in relation to a relevant tax, or (b) P has made a tax appeal (by notifying HMRC or otherwise) in relation to a relevant tax but that appeal has not yet been— (i) determined by the tribunal or court to which it is addressed, or (ii) abandoned or otherwise disposed of. This seems rather unfair – it isn’t the case that payments pending appeal are brought forward. The tax enquiry itself can trigger off acceleration. Of course, the other conditions need to be met too but this one has relevance to timing:

(3) Condition B is that the return or claim or, as the case may be, appeal is made on the basis that a particular tax advantage (“the asserted advantage”) results from particular arrangements (“the chosen arrangements”).

(4) Condition C is that one or more of the following requirements are met— (a) HMRC has given (or, at the same time as giving the accelerated payment notice, gives) P a follower notice under Chapter 2— (i) in relation to the same return or claim or, as the case may be, appeal, and (ii) by reason of the same tax advantage and the chosen arrangements; (b) the chosen arrangements are DOTAS arrangements; (c) a GAAR counteraction notice has been given in relation to the asserted advantage or part of it and the chosen arrangements (or is so given at the same time as the accelerated payment notice) in a case where the stated opinion of at least two of the members of the sub-panel of the GAAR Advisory Panel which considered the matter under paragraph 10 of Schedule 43 to FA 2013 was as set out in paragraph 11(3)(b) of that Schedule (entering into tax arrangements not reasonable course of action etc).

(5) “DOTAS arrangements” means— (a) notifiable arrangements to which HMRC has allocated a reference number under section 311 of FA 2004, (b) notifiable arrangements implementing a notifiable proposal where HMRC has allocated a reference number under that section to the proposed notifiable arrangements, or (c) arrangements in respect of which the promoter must provide prescribed information under section 312(2) of that Act by reason of the arrangements being substantially the same as notifiable arrangements within paragraph (a) or (b).

(6) But the notifiable arrangements within subsection (5) do not include arrangements in relation to which HMRC has given notice under section 312(6) of FA 2004 (notice that promoters not under duty imposed to notify client of reference number).

(7) “GAAR counteraction notice” means a notice under paragraph 12 of Schedule 43 to FA 2013 (notice of final decision to counteract under the general anti-abuse rule).

10. Effect of the APN

223 Effect of notice given while tax enquiry is in progress

(1) This section applies where an accelerated payment notice is given by virtue of section 219(2)(a) (notice given while a tax enquiry is in progress) (and not withdrawn).

(2) P must make a payment (“the accelerated payment”) to HMRC of the amount specified in the notice in accordance with section 220(2)(b).

(3) The accelerated payment is to be treated as a payment on account of the understated tax (see section 220).

(4) The accelerated payment must be made before the end of the payment period.

(5) “The payment period” means— (a) if P made no representations under section 222, the period of 90 days beginning with the day on which the accelerated payment notice is given, and (b) if P made such representations, whichever of the following periods ends later— (i) the 90 day period mentioned in paragraph (a); (ii) the period of 30 days beginning with the day on which P is notified under section 222 of HMRC’s determination. Payment must be made in 3 months from the date of the APN or one month from the determination by HMRC of its review.

11. How much is to be paid?

(4) “The understated tax” means the additional amount that would be due and payable in respect of tax if— (a) in the case of a notice given by virtue of section 219(4)(a) (cases where a follower notice is given)— (i) it were assumed that the explanation given in the follower notice in question under section 206(b) is correct, and (ii) the necessary corrective action were taken under section 208 in respect of what the designated HMRC officer determines, to the best of that officer’s information and belief, as the denied advantage; (b) in the case of a notice given by virtue of section 219(4)(b) (cases where the DOTAS requirements are met), such adjustments were made as are required to counteract what the designated HMRC officer determines, to the best of that officer’s information and belief, as the denied advantage; (c) in the case of a notice given by virtue of section 219(4)(c) (cases involving counteraction under the general anti-abuse rule), such of the adjustments set out in the GAAR counteraction notice as have effect to counteract the denied advantage were made.

(5) “The denied advantage”— (a) in the case of a notice given by virtue of section 219(4)(a), has the meaning given by section 208(3), (b) in the case of a notice given by virtue of section 219(4)(b), means so much of the asserted advantage as is not a tax advantage which results from the chosen arrangements or otherwise, and (c) in the case of a notice given by virtue of section 219(4)(c), means so much of the asserted advantage as would be counteracted by making the adjustments set out in the GAAR counteraction notice.

Section 208 provides:

(3) In this Chapter “the denied advantage” means so much of the asserted advantage (see section 204(3)) as is denied by the application of the principles laid down, or reasoning given, in the judicial ruling identified in the follower notice under section 206(a).

12. Review of the APN

222 Representations about a notice

(1) This section applies where an accelerated payment notice has been given under section 219 (and not withdrawn).

(2) P has 90 days beginning with the day that notice is given to send written representations to HMRC— (a) objecting to the notice on the grounds that Condition A, B or C in section 219 was not met, or (b) objecting to the amount specified in the notice under section 220(2)(b) or section 221(2)(b).

(3) HMRC must consider any representations made in accordance with subsection (2).

(4) Having considered the representations, HMRC must— (a) if representations were made under subsection (2)(a), determine whether— (i) to confirm the accelerated payment notice (with or without amendment), or (ii) to withdraw the accelerated payment notice, and (b) if representations were made under subsection (2)(b) (and the notice is not withdrawn under paragraph (a)), determine whether a different amount ought to have been specified under section 220(2)(b) or section 221(2)(b), and then— (i) confirm the amount specified in the notice, or (ii) amend the notice to specify a different amount, and notify P accordingly.

The taxpayer has 90 days to seek a review. There do not appear to be any provisions for an appeal to a Tribunal. The reasoning must be that the pre-conditions do not involve a value judgment. However, it would be needed to the extent that one needed to decide if there were DOTAS arrangements (in respect to one of the limbs). A withdrawal of the follower notice would assist. The appeal procedure for that has been discussed above.

13. Penalty for non-payment under APN:

226 Penalty for failure to pay accelerated payment

(1) This section applies where an accelerated payment notice is given by virtue of section 219(2)(a) (notice given while tax enquiry is in progress) (and not withdrawn).

(2) If any amount of the accelerated payment is unpaid at the end of the payment period, P is liable to a penalty of 5% of that amount.

(3) If any amount of the accelerated payment is unpaid after the end of the period of 5 months beginning with the penalty day, P is liable to a penalty of 5% of that amount.

(4) If any amount of the accelerated payment is unpaid after the end of the period of 11 months beginning with the penalty day, P is liable to a penalty of 5% of that amount.

(5) “The penalty day” means the day immediately following the end of the payment period.

(6) Where section 223(6) (accelerated payment payable by instalments when it relates to inheritance tax payable by instalments) applies to require an amount of the accelerated payment to be paid before a later time than the end of the payment period, references in subsections (2) and (5) to the end of that period are to be read, in relation to that amount, as references to that later time.

(7) Paragraphs 9 to 18 (other than paragraph 11(5)) of Schedule 56 to FA 2009 (provisions which apply to penalties for failures to make payments of tax on time) apply, with any necessary modifications, to a penalty under this section in relation to a failure by P to pay an amount of the accelerated payment as they apply to a penalty under that Schedule in relation to a failure by a person to pay an amount of tax.

14. Observations

First things first: these rules do not change the substantive position – that is, they do not render an effective form of planning into an inefficacious one. Rather, they make a presumption about the (in)efficacy of an arrangement where certain conditions are met – and it, of course, remains open for taxpayers to make a substantive appeal under existing routes. Any penalty under the Follower Notice regime is tax-geared, so that if the substantive appeal is successful, the penalty is discharged. At first glance, the provisions therefore represent a sort of Purgatorio from which redemption is possible.

However, the presumption under the Follower Notice does not only affect the question as to who holds the funds in the interim. It may be that the taxpayer loses his appeal and, as a result of the Follower Notice, has therefore to pay an amount in addition to the taxes and costs. So, he has had to pay a (rather high 50%) price simply for fighting his case. A fairer design would have been one under which the taxpayer had the option to appeal the Follower Notice and, if he fails and then capitulates on the substantive issue, he then has the option of paying just the tax due. However, under the present rule, if he appeals the Follower Notice and fails, then the only way he can avoid the penalty is if he wins the substantive case. So, the risk to him of pursuing litigation is asymmetrically greater. And the provisions deliberately prey on his sense of uncertainty.

Should the prospect arise of HMRC issuing a Follower Notice, the likelihood of a successful appeal (i.e. of the Follower Notice) could be factored in. On appeal, the challenge for HMRC is going to be to demonstrate that there is a ruling which does affect the planning. However, I have highlighted numerous reasons as to why it might not be proper for one ruling to be relied upon determinatively in another case – for instance, where the facts can be distinguished. Second, there is, in the form of section 214(3)(d), a defence to a penalty under the Follower Notice regime – even in cases where there is a relevant judicial ruling. What I infer from this is that the legislator is leaving open the prospect of a let-out in cases where there is good reason – such as where the other ruling was poorly argued (even though it would otherwise be relevant). So, the real target of the Follower Notice regime, as it appears to me at least, are really those cases where the taxpayer simply has no leg to stand on but persists with his appeal simply with a view to securing for himself simply the cash flow advantages of a prolonged appeal. The securing of this objective is perhaps not as benighted an aspiration as might first have appeared. However, no matter how much I might highlight the various grounds under which an appeal might successfully be made (the application of the Human Rights Act and of EU principles have rightly been considered here too), the fact remains that  the very act of holding one’s position against HMRC carries, as a matter of design, the prospect of an additional levy and this is ultimately objectionably coercive.

As far as APNs are concerned, the legislator’s moral position is even less straightforward here in my view. As seen, one gateway into this regime is the issue of a Follower Notice. In addition, another gateway here is where there are, in simple terms, DOTAS or GAAR arrangements. The fact that the mere falling of an arrangement within DOTAS (which really says nothing about the efficacy of that arrangement) should bring one within the remit of the APN is problematic and hard to reconcile with the more laudable policy objectives with which I have sought to underpin these new provisions here. A far fairer approach would have been for the interim position to be based on the likely prospects of success (with a summary hearing being held to decide this).

This article is based on a speech delivered for BeyondPB in October 2014

The Lost and Found Discipline of Negotiation

Diplomacy is the art of letting someone else have your way.

–    Sir David Frost

An onslaught of judicial review claims has been predicted in light of the introduction of ‘follower notices’ by the Finance Act 2014. My own view, however, is that the review option will not be needed in genuine cases of discrepancy. This is based on my experiences of negotiating with HMRC, which have been overwhelmingly positive to date.

Define ‘winning’

Consider the following scenarios in circumstances where a dispute arises over tax liabilities:

(A) HMRC disagree with you and the courts agree with them;

(B) HMRC disagree with you but the courts agree with you.

Now consider this:

(C) Your advisor writes a letter to HMRC. HMRC agree with you and withdraw 100% of their claim.

We live in a world of false choices. The focus in practice is all too often on the route that leads us down to (A) or (B), not so much on (C). Promoters start off with a ‘fighting fund’ and the selection of a litigator as primary advisor. When a dispute first arises, consensus is often not considered viable enough an option in its own right, with the instruction of a barrister being deferred until after the appeal notice has been issued. And looking back from a successful resolution, it certainly is the case that a legal team which has procured a victory in litigation has a more glamorous prize to boast of than one which has obtained a settlement or a withdrawal by HMRC of its claim.

This is strange. May I submit that there is, quite simply, no better service one can render the lay client and his insurers than to achieve the same result sooner whilst at the same time protecting him or her altogether from the stress, the burden, the vagaries, the costs and the publicity of litigation? Once you get to (B), the question which you must then really ask yourself is why (C) was not obtained in the first place. Seen this way, (B) is a failure. When you have failed to settle it is not just so much that you have failed to convince HMRC of the merits of your case, it is more that you have failed to convince HMRC that you would not fail to persuade the courts of the merits of your case – this, as a matter of logic, is a lower threshold to satisfy, as the courts will naturally not always agree with HMRC.

There are various reasons as to why there is this proclivity towards litigation, especially in terms of perception. First, there is the publicity which attaches to a decision – there is a particular date, an outcome, a label, a name. The very attraction of a sub rosa negotiation is perhaps its greatest weakness here. In addition, there is some inbuilt bias towards litigation within the legal profession itself – given that a decision is not only the source of law but also the fossil of a previous dispute, it is not surprising that our minds are inclined to viewing its ratio primarily as a tool to be applied to a subsequent dispute. The silk system has traditionally been based on experience in advocacy, even though there has rightly been a shift in recent times with a greater emphasis now being placed on securing the best outcome for a client in a dispute. As far as the lay client is concerned, there may be a distrust of HMRC and a desire for the case to be heard by the judges. There is also a sense of machismo attached to litigation which, based on my readings of non-fiction around the banking crisis, might well appeal to many in the City, lawyers and non-lawyers alike. I suspect that the greatest factor may well be momentum – the biographies of most advisors recount their involvement in cases and, to a lesser extent, settlements – but less so the ‘six’ of facilitating a withdrawal by HMRC of its claim. It may simply be that practitioners have been unsure as to how to highlight this in their resumes, given the established format which they follow.

Smoothly does it…

And so the purpose of this piece is not so much to undermine our own hard-fought victories in litigation as it is to highlight, through an adumbration of my other experiences, the seminal part that negotiation can play in practice.

When I was first training to be a barrister, negotiation was taught to us as a separate discipline, taking it’s own distinct place alongside drafting and advocacy. It then disappeared from my sphere of operations, at least on a formal basis, as I joined the tax bar. Then, in 2006, I was involved with an income tax dispute. An agreement had been reached between the client and HMRC over a telephone conference. Subsequent claims by HMRC seemed to disregard this agreement. I restated the case for the client. HMRC withdrew 100% of their claim.

In 2008, I advised on the SDLT treatment of a particular transfer of land. The matter was disclosed to the HMRC. They made some enquiries. I told the client to convey X, Y and Z to HMRC. The client did so. HMRC did not raise any further questions.

In 2012, I was involved in a VAT dispute. The client had a charity fund-raising company and auctioned goods on behalf of charities at fund-raising events. HMRC argued that the client ought to have accounted for output tax on those auctions. I wrote a letter to HMRC and they withdrew 100% of their claim.

Soon afterwards, I was involved in a residence dispute. As is usual, there had already been some correspondence by the time my involvement commenced. I wrote a letter to HMRC and they withdrew 100% of their claim.

In a period approaching 10 years, HMRC have, in any direct dealings between ourselves, always agreed to my interpretation of tax provisions.

As to why this has been the case, it seems to me that there are various factors at play here. To some extent, we are, of course, entering here those realms of professional pursuit which are governed more in their outcomes by our personal characteristics than others. Some of it must come down to the style of the negotiator concerned.

But if there is one thing which I believe to be paramount to achieving a successful early settlement, it is a consistency in the theory of the case. The concept of ‘theory of the case’ is more commonly used in criminal law but has as much a place in tax. The idea being that the parties are able to explain from the outset as to what exactly has been done and to take a strong and clear stance on what they believe the general and tax ramifications of it being done are. For instance, in Philip Boyle, there was uncertainty as to whether the payments were loans. The use of a foreign currency was claimed but not evidenced. There is nothing to be achieved in claiming facts which cannot be evidenced or in evidencing facts which cannot avail in any event (this is my understanding of the use of foreign currency here).

There will inevitably be cases where the negotiator is brought in at a later stage. As an advisor being brought in, there is nothing to be gained from lamenting past actions. A QC in our chambers, when I once made such a complaint to him, told me a joke about a man who asked another man he had come across the way to a certain town. The other man thought about it for a moment and said, ‘If I were you, I wouldn’t start from here!’ Very true. The best thing here would be for the parties to seek legal advice as soon as possible with a view to characterizing the facts and the law in the best way possible. For what it’s worth, my interventions in some of the cases above were after-the-event interventions. Often, it is the mere act of having sought detached independent legal advice which in itself goes some way towards pacifying HMRC.

But a coherent theory of the case will really be best put together where the actions have all along been based on proper legal advice. In other words, there is no substitute for sound planning. When things are done by the book, one will be in a position to provide prompt answers to any HMRC questions and nip the thing in the bud. It is not just the answer but the meticulousness which will impress. In writing for professional clients, I am in a sense preaching to the converted. However, the point is not simply that comprehensive legal advice must be sought, rather it is that planning is best proceeded with under the auspices of an expert in the particular area rather than say a litigator who may well go from one area to the next. For instance, in Leeds Design, I understand that there was some difficulty in explaining why the interest was formed as a discount. In Kings Pollen, there was difficulty in explaining the policy objectives underlying the HMRC argument. No professional is likely to have as much ownership of the planning as the architect himself. As the saying goes in the film business, ‘You are more likely to make a good film with a good script, but with a bad script, the odds are against you.’

Conclusion

I am conscious that there is perhaps an air of self-congratulation in my recounting of my experiences. However the clandestine nature of negotiations renders it hard to discuss negotiations other than those experienced firsthand. Furthermore, the tenor of this piece is that the key, even more than the negotiator, is sound planning ab initio. I have also tried to challenge the commonly held perception of HMRC as difficult. My experience of negotiating with HMRC has shown them to be always helpful, open-minded and, as seen, even acquiescent.

The lessons learnt from negotiation can be brought to bear on disputes arising with HMRC in the context of ‘follower notices’. It seems to me that follower notices, rather than attempting to extend the scope of judicial precedents, are targeting more those instances where the parties wish to lean on the circuitousness of the appeal system to defer the payment of tax due. I have some sympathy for what is being attempted by the legislator.

The discipline ought to be given greater consideration to in general practice too. Counsel ought to be instructed with the specific objective of settling once a dispute first looms. And when it comes to planning, the litigation tail ought not to wag the dog. Where one’s budget allows for it, advice is really best obtained from a specialist in the particular area with a record of having consistently been agreed with by none less than HMRC itself.

May 2014