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A must read NRCGT penalty case where taxpayer won

It gets really good from para 159

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28th Sep 2017 16:31

Well done to the judge for cutting through all the HMRC cr*p.

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By Ruddles
to Justin Bryant
28th Sep 2017 17:01

And, credit where credit's due, well done to Justin for providing some genuinely entertaining reading for once.

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to Ruddles
28th Sep 2017 18:08

Indeed Ruddles.

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By SJRUK
28th Sep 2017 17:02

Wonderful - "nerdview" and "claptrap" !!

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29th Sep 2017 08:58

He has some 'kind' words on MTD in there as well

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By sparish
29th Sep 2017 09:33

Wow! You don't usually get such entertaining reading from a tribunal decision. I wonder if they will appeal?

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to sparish
29th Sep 2017 12:06

You'd be surprised actually. There are some corkers about :)

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By Akrigg
29th Sep 2017 12:32

Thanks - that's cheered up my Friday lunchtime.

Round of applause for the judge.

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to Akrigg
29th Sep 2017 16:25

Am I correct in thinking that the daily penalties were incorrectly charged because HMRC didn't notify the taxpayer in advance that they intended to impose daily penalties?

If so, do we have a similar issue with ATED penalties?

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29th Sep 2017 17:32

I've not quite gotten to the end (out at a client's this afternoon) but I think Justin has understated 159. I literally laughed out loud.

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26th Oct 2017 14:40

I am glad to see another sensible judge has followed this case (at least in relation to a NRCGT loss), quoting from it with approval. See:

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j10143/TC0...

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to Justin Bryant
26th Oct 2017 15:35

Not as entertaining as McGreevy, but still enjoyable.

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22nd Dec 2017 18:25

Interestingly in the 2 subsequent NRCGT late filing penalty cases below another judge has, in basically identical circumstances to the other 2 cases above, refused the taxpayer's appeal.

http://www.bailii.org/uk/cases/UKFTT/TC/2017/TC06266.html

http://www.bailii.org/uk/cases/UKFTT/TC/2017/TC06265.html

These latest judgments aren't particularly well written (the judge even confuses the two taxpayers at para 145 of the Hesketh case) and the judge misses the basic point that under contract law (and tort) conveyancing solicitors have a duty to alert their clients of such tax bear traps and the need for specialist tax advice if necessary (even if it's outside the scope of their engagement letter) and so of course the client relies on that advice and it is the solicitor's negligence in not alerting their client to that NRCGT 30 day filing requirement that has been the cause of the failure to file it on time (and it is nonsense for that reason to say that they did not rely on the solicitor's advice because the solicitor did not tell them about it or they did not seek it in the first place.)

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15th Feb 2018 14:22

Here's the latest case on these NRCGT late filing penalties where the judge appears to have made the same mistake as the other judge above re overlooking taxpayers relying on a solicitor to inform them of this new earlier filing deadline.
http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j10305/TC0...

I don't think the carve out for reliance on another person in para 23(2)(b) sch 55 FA 2009 should apply, since appointing a solicitor and thereby expecting him (under the relevant case law) as a regulated professional to advise you of such bear traps is clearly taking reasonable care.

Incidentally, like the other judge above this latest case is also very badly written up with the case head note stating it relates to income tax!

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11th May 2018 15:39

At last a sensible judge has picked up on my above point re taxpayer's reasonable reliance on their UK tax advisor being a reasonable excuse for their failure to file a NRCGT return, and although he did not extend that to solicitors not specifically engaged to advice on CGT etc., I think he should have for the above reasons (and notwithstanding what he says in para 77, he seems to suggest that that is correct in para 86 where he says "He could reasonably have expected his UK tax advisers to inform him of the need to file the return, having informed them of the disposal of the Property", since exactly the same point could be said for solicitors for the above reasons and also in para 79 with "I would have expected a competent UK tax adviser to have informed Mr Hart of the need to file a NRCGT return" which could equally be said of a solicitor). See: http://www.bailii.org/uk/cases/UKFTT/TC/2018/TC06446.html

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29th Aug 2018 10:33

Hallelujah! A highly intelligent and sensible judge has at last hit this nail on the head and agreed with my above solicitor reliance defence argument. See para 122 et seq.

I would be very surprised indeed if HMRC win an appeal on this as it is a very correct looking judgment (especially re the ignorance of the law issue in para 145).

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j10487/TC0...

[Edit] I note the NRCGT article in the link below agrees that there is a solicitor duty of care here as follows:

"However, some duty of care will still apply to flag the issue."

https://www.taxation.co.uk/Articles/2015/04/07/332875/keep-it-uk

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to Justin Bryant
22nd Jun 2018 14:49

I particularly like the sarcy footnotes :)

Page 19 note 7 you can see "No 5h1t Sherlock" crossed out and "Who'd have thought" replacing it.

Sadly there are two others going the other way also reported in the last couple of days:
Mei Chun Wong v HMRC http://www.bailii.org/uk/cases/UKFTT/TC/2018/TC06516.pdf
and
Steven Harrop v HMRC http://www.bailii.org/uk/cases/UKFTT/TC/2018/TC06511.pdf

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to Paul D Utherone
22nd Jun 2018 15:52

Yes; those other recent NRCGT late filing penalty case judgments are in my view total rubbish, basically for the reasons given above.

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16th Jul 2018 13:28

Another taxpayer win (for the same above solicitor reliance reasonable excuse reasons) here:

http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j10544/TC...

Interesting also that para 82 of Perrin is cited. See: https://www.accountingweb.co.uk/any-answers/very-interesting-reasonable-...

Compare & contrast with this recent rubbish decision:
http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j10520/TC...

It is also wholly inappropriate in this case to treat solicitors duties as analogous to estate agents re tax matters (and there is no need for a specific tax engagement as I explain above)! See pars 34 et seq here:

http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j10552/TC...

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10th Aug 2018 19:06

Another taxpayer win in link below but a flawed judgment re reliance on a solicitor, since HMRC argue in para 17(b) that a NRCGT is a very basic thing for anyone to understand and does not require a specialist and the judge more or less agrees but then effectively decides the opposite in para 45 by saying that only a tax specialist solicitor would potentially satisfy that reliance test (so the judge is both HMRC-contradictory and self-contradictory here)!

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j10584/TC0...

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06th Sep 2018 14:27

Another sensible solicitor reliance win for taxpayer. See para 31:

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j10594/TC0...

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05th Oct 2018 12:27

Another very excellent & sensible looking decision here re reliance on the conveyancing solicitor being a reasonable excuse. See paras 161 & 170:

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j10703/TC0...

Compare & contrast that with para 130 of the case below in a different tax context (a million miles away):

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j10689/TC0...

An amazingly detailed and erudite judgment (see para 210 especially)!

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