Newth Talks Tax: Submission of tax return cancels determination?

PART 2. PLEASE READ PART 1 FIRST
KT ? What’s different?

Answer

Mandatory to Perhaps. Shall to maybe

And

Not directly to the Commissioners

But

Notice of appeal under subsection (2) must be given—

…

to the officer of Revenue and Customs by whom that notice was given [what notice?][notice of what?] Double Assessment is entirely irrelevant and superfluous as the title is “Relief for Excessive Assessments and applies to sections 32 and 33TMA 1970.

Note importantly not direct to the 2nd Tier Tribunal

Section 33 (4) New) is ominous please read it in relation to Section 33.

Section 32 TMA 1970 revised has in my view become 10 times more difficult to make an appeal and also much more costly.
Is it designed by the Revenue as DEATH KNELL TO EQUITABLE Liability yes or no. I leave the reader to make his own mind up. It is a massive change made in secondary legislation and not mandatory as in the primary legislation. WOW !!!

Relief for Excessive assessments section 32 TMA 1970 Old.

RELIEF FOR EXCESSIVE ASSESSMENTS

32 Double assessment [ NOTE HANNIGAN IT IS ANY OVER ASSESSMENT AS PARLIAMENT WOULD NOT HAVE INTENDED THAT WHEN THE REVENUE MAKES AN "ERROR OR MISTAKE" TO AVOID UNJUST ENRICHMENT TO REVENUE/ GOVT COFFERS ] [UNJUST ENRICHMENT]

32(1) If on a claim made to the Board it appears to their satisfaction that a person has been assessed to tax more than once for the same cause and for the same chargeable period, they shall
direct the whole, or such part of any assessment as appears to be an overcharge, to be vacated, and thereupon the same shall be vacated accordingly.

32(2) An appeal on a claim under this section shall lie to any of the bodies of Commissioners having jurisdiction to hear an appeal against the assessment, or the later of the assessments, to which the claim relates.

History – S. 32(1) amended by FA 1985, Sch. 27, Pt. X, with effect from 19 March 1985 to remove references to development
land tax.

Cross references – FA 1995, Sch. 21, para. 3(2): modification of s. 32, as respects each partner for 1996–97, in case of
partnership whose trade etc. was set up and commenced before 6 April 1994.

TCA 2002, s. 20(2): revisions of decisions on working tax credit and child tax credit following vacation of an assessment, or determination or settlement of appeal.
Extra-statutory concessions – B41: repayments of tax will be made outside the statutory six-year time limit where an
overpayment of tax has arisen because of an error by the Revenue or another government department, and where there is no
dispute or doubt as to the facts.
Revised Section 32 (2) TMA will read as follows under Tax connery of unfortunates.

For section 32(2) (this Section is replaced by a Revenue and or the Dave Harnett’s mindset; the man who explained equitable liability in 1995 as follows below for and in an historical sense)

If we read the original below (taken from above):

32(2) An appeal on a claim under this section shall lie to any of the bodies of Commissioners having jurisdiction to hear an appeal against the assessment, or the later of the assessments, to which the claim relates.

The following does seem to be a complete change of mood a mandatory to a perhaps.

For section 32(2) (double assessment) substitute—(the deceptional clue).

32(2) New Section from 1st April, 2009
“(2) An appeal may be brought against the refusal of a claim under this section.
New from 1st April, 2009
(3) Notice of appeal under subsection (2) must be given—
(a) in writing;
(b) within 30 days after the day on which notice of the refusal is given;
(c) to the officer of Revenue and Customs by whom that notice was given.”

END PART 1

Tax law rewrite [exert from page 6] of original document and included in
STATUTORY INSRUMENT no. 56 2009 with considerable changed effect
TENSE AND MOOD OF SENTENCES
20. Traditionally in the United Kingdom legislation has been written in the imperative mood, sometimes referred to as the "legislative mood". The modern style of drafting is to write in the present tense and the indicative mood, the imperative mood generally being used only when the legislation is imposing a statutory duty, e.g. "The Commissioner shall..." Even then, on occasions, "must" and "must not" are used in place of "shall" to impose a statutory duty. We have no objection to this modern style of drafting and, in general, will continue to use "shall" to impose a statutory duty in the rewritten legislation.
21. However, the imperative mood is also sometimes used in legislative sentences to make a declaration.
For example s12(2) ICTA 1988 states:
An accounting period of a company shall begin for purposes of corporation tax whenever-...
22. We consider the use of the word "shall" in these situations to be misleading because it is often mistaken for the future tense. Furthermore it draws unnecessary attention and excessive emphasis to a simple statement.
23. In the rewrite we will replace declaratory phrases such as "shall begin", "shall be guilty of an offence" (20BB TMA 1970) and "shall apply" (s543(2) ICTA 1988) with words such as "begins", "is guilty of an offence" and "applies".
24. The imperative mood is also sometimes used to describe the legal effect of an enactment.
For example s32(2) TMA 1970 states:
An appeal on a claim under this section shall lie to...
25. Again we see no need for the use of the word "shall" in these contexts. When rewriting we will use the present indicative rather than the imperative in these cases and so we will state "An appeal lies..." rather than "An appeal shall lie..."
By slight of hand with a wave of smoke and mirrors
From 32 (2) “An appeal under this section shall lie to any of the bodies of Commissioners” to the non mandatory ie An appeal may be brought against the refusal of a claim under this section and later MUST be brought within 30 days to the Revenue and Customs.
The Revenue have thus changed completely the meaning of primary legislation Statute in Section 32 (2) and imposed considerable impediments many hurdles or impediments for the appelant. It becomes closer to a situation whereupon the Revenue takes on the power of discretion to allow appeal to the Tribunals.
The appelants rights of appeal have been severely curtailed and time limits imposed. “Just and Eqitable decision making have been sacrificied by Revenue sleight of hand”
No explantion of the changes made has been published for M.P.’s hence they have been well and truly hoodwinked by crafted drafting which I find is amoral behaviour by the Revenue.

Equitable Liability Simple or not
Orchard View,
Kenn,
Exeter,
EX6 7UH
Telephone (01392) 833 054
Dear Sirs,
I wrote the following letter to the Times and it did not see the significance of its content.
Not Just, not Fair, nor Equitable!
When Mr. Pitt introduced graduated tax in 1799, his intention was to build on the maxims “taxation should always be just and equitable”. This allowed the tax and non tax payer the mandatory right of appeal when he considered he was being taxed on excessive, unfair assessments or changes.
The tax payer under Section 32 TMA 1970, has always had that right of appeal to an independent body against “excessive tax assessments”. Until the 18thJanuary, 2009 that mandatory right was preserved under Section 32. It protected the payer being taxed upon what were in effect Revenue “errors or mistakes”.
This and Section 33 TMA 1970 offered relief from the Revenue’s “unjust enrichment” and gave the right to “equitable liability” from those “Excessive Assessments”.
Now the Revenue wishes to deprive (or make extremely difficult) that fundamental right.
Section 32 intentionally had no time limits in which to appeal; as Parliament has always believed (intended) that the Revenue should “never profit intentionally” from “its own errors or mistakes” at the expense of the conscious and knowledgeable tax payer.
Spun under the guise of simplification and modernization (ease to use): in Statutory Instrument No. 56, 2009, the Revenue has surreptitiously forced through a deceived Parliament; the removal of the right to a fair trial; and hidden as “merely a change over”, to the new Tribunals System of Appeals; by adding procedural and timed pitfalls. The Revenue has engineered up the risks of appeal and tax review which will multiply tax payers costs 10 fold. Tax payers should be aware of the swing of the Tax pendulum to complete unfairness, now even worse, at the Revenue’s discretion.
These sordid changes to “Our Laws” must be repealed to comply with the Pitt’s above maxims of justice. Read Section 32 before revision and after, equilia

Posts: 3
Joined: Wed Mar 18, 2009 8:01 am

RELIEF FOR EXCESSIVE ASSESSMENTS

32 Double assessment

32(1) If on a claim made to the Board it appears to their satisfaction that a person has been assessed to tax more than once for the same cause and for the same chargeable period, they shall
direct the whole,

or such part of any assessment as appears to be an overcharge, to be vacated, and thereupon the same shall be vacated accordingly.

32(2) An appeal on a claim under this section shall lie to any of the bodies of Commissioners
having jurisdiction to hear an appeal against the assessment, or the later of the assessments, to which the claim relates.
History – S. 32(1) amended by FA 1985, Sch. 27, Pt. X, with effect from 19 March 1985 to remove references to development
land tax.
Cross references – FA 1995, Sch. 21, para. 3(2): modification of s. 32, as respects each partner for 1996–97, in case of
partnership whose trade etc. was set up and commenced before 6 April 1994.
TCA 2002, s. 20(2): revisions of decisions on working tax credit and child tax credit following vacation of an assessment, or
determination or settlement of appeal.
Extra-statutory concessions – B41: repayments of tax will be made outside the statutory six-year time limit where an
overpayment of tax has arisen because of an error by the Revenue or another government department, and where there is no
dispute or doubt as to the facts.

This will change from 1st April, 2009 as a result of Statutory Instrument No 56 2009 and will no longer be mandatory.

Section 32 TMA 1970 is the answer if the Revenue have made errors or mistakes.
The errors and mistakes must be identified by submitting returns if not previously submitted. If the returns are accepted then the Revenue will reduce the tax burden to the correct amount of taxation.
There are no time limits if it can be shown that the revenue was being unjustly enriched as a result of Revenue Errors or mistakes.
I have gone back 10 years some supposedly out of date and reduced the determinations to nil. In this case I am appealing to the Special Commissioners in relation to Class 2 National Insurance as the income was below the LEL.
In addition an appeal to have the bankruptcy set asside on the basis that the banrupt should not have been made bankrupt as a result of gross Revenue errors.
Becasuse the Revenue have placed just about every obstacle in my way I will request Exemplary Damages for malicious action taken.
I advise anyone considering claiming Equitable Liability to get their claim in before the 31st March, 2009.

John
Perhaps you would comment on the following -
Client fails to submit returns issued (gone abroad and told us we no longer needed to act), we didn't know returns issued.
Revenue issues determinations.
Client does not pay and does not submit returns.
Revenue, according to client, arranges for £13,800 tax to be "seized" from his Portuguese bank account to satisfy the tax, interest and penalties.
Revenue asks for returns to be submitted to set aside the determinations.
Returns completed but some years now out of date. Liability for those years less than determinations.
Revenue refuse to use E L as tax has been "paid" and so no liability on which to apply EL!!
We have objected as tax was not paid but "seized". Awating Revenue response.

I think that you need specialist advice in this complicated case, IRH, possibly from a lawyer..