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Where Taxpayers and Advisers Meet

NRCGT return

Posts: 659
Joined: Mon Nov 02, 2009 5:25 pm

Re: NRCGT return

Postby etf » Thu Feb 13, 2020 12:17 pm

Thanks for the response robbob. Yes, it would be funny if all this were not actually true.

The recent criticism of HMRC from the CIOT included the subject of unpublished tribunal cases.

Of course, we very nearly had a NRCGT tribunal case (lost by HMRC) that would probably have remained unpublished had it not been for this thread. rbk123 (who won the case) wrote three times to point out it had not been published without any success. I was initially told to keep my nose out and only after I ignored that advice was it subsequently agreed that the case would be published.

Now, if it was any old case, the above could perhaps be quickly forgotten, but the Kirsopp (x2) case is not any old case. Since it finally found the light of day, HMRC has not had any NRCGT tribunal cases published on the Gov' website, a point that was predicted by Peter Vaines in his article below.

There has been another case Kirsopp v HMRC [2019] UKFTT 0217 (TC) which might be thought to be just another one in the growing catalogue of conflicting decisions … but perhaps not. This case might just bring the debate to a close.

The distinguished Upper Tribunal Judge Charles Hellier (sitting in the FTT for this case) explained that there was a divergence of opinion among FTT Judges on the matter. However, he drew attention to the decision of the Upper Tribunal in Perrin v Revenue & Customs [2014] UKFTT 488 (TC) which held that it was a matter for the judgment of the FTT in each case whether it was objectively reasonable for the particular taxpayer to have been ignorant of the requirements in question.

Judge Hellier specifically rejected HMRC’s argument that a taxpayer has an obligation to keep up to date with the law. He held that there is no such obligation. A penalty may arise from an inexcusable breach of the law, but not from the failure to keep up to date.

In the circumstances of Mr and Mrs Kirsopp, Judge Hellier concluded that they had displayed a reasonable regard to complying with their tax obligations and remedied their failure within a reasonable time after they discovered the true position. They therefore had a reasonable excuse.

I would respectfully suggest that this must be right. It surely cannot be reasonable for HMRC to suggest that non-resident individuals have a duty to keep up to date with all aspects of UK tax legislation which could possibly affect them; and must regularly read all HMRC publications and be completely familiar with the HMRC website. It would follow from this reasoning that everybody in the world must have this duty. And there is no reason why this obligation not extend to all UK legislation – not just tax.

Can you imagine what the Chairman of HMRC would say if he went to Sweden and was immediately fined a large sum of money by the authorities there. Why have I been fined? Because you have contravened one of our rules. You have a duty to be up to date with Swedish law (and with all the materials published by the government – all in Swedish). So pay up. But that is just silly, he would say.

Well, yes.

If HMRC has changed course in dealing with NRCGT return late filers and it agrees the Taxpayers Charter is still in play, why has it not announced an internal review of its earlier behaviour?

If either Lee, who wrote two brilliant articles on NRCGT late filings, or Mark (the editor) read this post, are they able to advise why they have seemingly ceased (at least in print) to support this cause? If they now disagree with my standpoint, I am very happy to be educated with reasoned argument.

I could suggest they have both been offered knighthoods to keep quiet, but that would be too naughty of me.

Posts: 659
Joined: Mon Nov 02, 2009 5:25 pm

Re: NRCGT return

Postby etf » Fri Feb 28, 2020 4:42 pm

Sir Jon's nose is now 14 feet long as the last published NRCGT tribunal case was released on 20 December 2018 (a gap of well over 14 months). I contended that HMRC was not dealing with taxpayers even-handedly as required by the Taxpayers Charter, but Sir Jon did not at the time accept this.

As a note of caution, the recent release of the Eamonn Holmes IR35 case showed it had taken 20 months to be published, and so perhaps there is a build up of hidden NRCGT cases that the public are unaware of, but hopefully that is not true.

The following lyrics from a Rush song seem very appropriate:

All this machinery
Making modern music (£1,600 penalty notices)
Can still be open-hearted
Not so coldly charted
It's really just a question
Of your honesty.

Posts: 659
Joined: Mon Nov 02, 2009 5:25 pm

Re: NRCGT return

Postby etf » Fri Mar 06, 2020 8:34 pm

The lyrics from Rush's song (see my previous post) also appear relevant to the McMillan tribunal case-see extract below and a link to Lee's article on the case:

HMRC had inadvertently disclosed a review letter dated 11 April 2018 (not sent to the Appellant) in which the review officer had concluded that all of the assessment and penalty determinations should be cancelled because HMRC had failed to identify a taxable source. The review letter which was in fact sent, dated 16 April 2018, from the same review officer, stated that the assessments and penalties should be upheld.

Will HMRC undertake a review of their seemingly uneven-handed treatment of NRCGT taxpayers e.g. Goochiegate?

A tax system will not work if the public perceive the people administrating it are untrustworthy.

Posts: 7893
Joined: Wed Aug 06, 2008 3:25 pm

Re: NRCGT return

Postby maths » Fri Mar 06, 2020 9:33 pm


I suspect that non-one would disagree with your sentiments expressed over this matter. Indeed it could be argued that you should be applauded for your tenacity and commitment.

However, the passage of time and life in general means that for most of us life moves on and other more pressing matters take over.

That's not to say this is defensible or "right" but certainly for better or worse it happens. As the saying goes "Today's newspapers are tomorrow's chip wrappings" or something like that; can never remember it.

In any event I would suggest it's now almost impossible to remember and recall all the comments you have made and so it's not really possible to offer comments taking account of earlier comments, criticisms etc.

The fact that non-one has posted anything material for the best part of 6 months, sadly or not, perhaps suggests there is no longer any real interest in the matter. Neither Mark nor Lee seem to have to date responded to your prodding in your 13 February post, over three weeks ago.

I am not in anyway seeking to be critical or taking a view one way or the other as to the merit of continuing to post but feel that maybe for your own sanity it may be time to reflect whether having highlighted in great detail an injustice your work is now done?

You are clearly a man/woman of passion and I would not wish to see that in any way curtailed or dimmed......... just maybe, maybe, it's time to seek out another injustice.

I trust you will take my comments in the spirit they are offered.

Best wishes
Maths (a man of few principles and suspect tax knowledge)

Posts: 1459
Joined: Wed Aug 06, 2008 3:15 pm

Re: NRCGT return

Postby Lambs » Fri Mar 06, 2020 10:29 pm

God, no. The (wo)man's on a roll. Veritably, the Duracell Bunny of tax practitioners. More power to your writing elbow, Good Sir (or Madam).



Posts: 659
Joined: Mon Nov 02, 2009 5:25 pm

Re: NRCGT return

Postby etf » Wed Mar 11, 2020 3:45 pm

Thank you both for your replies thus ending my monologue. I would point out that the Chinese doctor who attempted to flag the Corona virus was at the outset a lone voice and not many people now would argue against the message he was attempting to convey.

Maths, I welcome your feedback and your suggestion from a sanity/health standpoint makes absolute sense. However, I cannot agree an argument that if HMRC are less than truthful for long enough the behaviour becomes old and should be overlooked. If I flip that over, if a tax felon denies he has undeclared income for long enough, should HMRC give up on the collection of the missing taxes?

The Taxpayers Charter states taxpayers will be treated even-handedly. If that is correct can anyone explain Goochiegate and the appeal/tribunal statistics (that fluctuate like Government spending) suggesting HMRC has changed course mid-game thus disadvantaging taxpayers who were penalised in the first half.

Posts: 659
Joined: Mon Nov 02, 2009 5:25 pm

Re: NRCGT return

Postby etf » Wed May 20, 2020 12:07 pm

It is 17 months to the day (20 December 2018) that a Tax Tribunal decided the unfortunate Miles Green had to pay his NRCGT late filing penalties. Up until this date, NRCGT late filing penalty tribunal cases had been as frequent as Robbie Fowler goals in his pomp, but no cases have been recorded on the Gov' website since. This is a very strange fact considering HMRC are required to treat all taxpayers even-handedly (a word they appear to be trying to remove from the new edition of the Taxpayers Charter-perhaps they read this thread).

Current-1.1 Respect you and treat you as honest
We’ll treat you even-handedly, with courtesy and respect. We’ll listen to your concerns and answer your questions clearly. We’ll presume that you’re telling us the truth, unless we have good reason to think otherwise.

Proposed-Treating you fairly
We work within the law to make sure everyone pays the right amount of tax and gets their benefits and other entitlements. We trust you are telling the truth, unless we have good reason to think you’re not.

As the evidence is so compelling one hopes that eventually the people tasked with ensuring the Taxpayers Charter is adhered to might ask a few questions of the person at HMRC responsible for this task.

e.g. why were there so many NRCGT tribunal cases up to 20 December 2018 and seemingly none since?

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