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HMRC v PGMOL CoA: MOO still as clear as mud

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1370.html

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The only thing that seems to be reasonably clearly confirmed is what we all knew all along, which is that HMRC's argument that any work related contract of any kind is enough for MOO is patently nonsense (or at least that bit of the UT's decision does not seem to have been criticised by CoA in para 95). 

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1370.html

That said, whatever MOO is or isn't, it seems MOO's absence is not determinative and you must consider all other factors regardless per para 119. 

It's been remitted to FTT to decide. Good luck to anyone who can make sense of this and apply it accurately  to any particular facts. What a mess and how on earth is the CEST tool supposed to figure this out if these judges can't?

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By Justin Bryant
17th Sep 2021 14:52

Also interesting that Henderson LJ did not give the lead judgment, as he usually does on tax cases as an ex tax QC (as far as I'm aware Laing LJ has no tax background to speak of).

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By More unearned luck
21st Sep 2021 17:01

I trust that any trip back to the FTT is via the SC.

But, why is it going back to the FTT? It's not to hear new evidence - the FTT are to make a decision on "the basis of its original findings of fact". The reason given is that the FTT is a specialist court is suspect as the FTT is a specialist in tax law and the matter to be decided is an issue of contract law. Also the CoA spent its time picking holes in the UT and FTT's analyses, yet the CoA claims to know less about the relevant law than the FTT.

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By Justin Bryant
22nd Sep 2021 10:02

It's a mess in my view (unless there is an appeal to SC that makes more sense of it). I have read one or two case reviews and they do not make total sense (despite one review saying it clarifies matters!) and there are strange corollaries (e.g. per the CoA it seems that if I get someone personally recommended with good feedback reviews from Checkatrade to fix my leaking tap (i.e. I just want that sole trader plumber and no-one else) then MOO is satisfied and if that's right then there's little if any point of a MOO test in the first place). It seems that CoA has shorn MOO of most if not all meaning as a proper distinguishing test, so that in practice you just look at the other two Ready Mixed Concrete tests and that's basically what the FTT have been tasked to do.

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