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UTT Tribunal comments were persuasive but not binding so the appeal at UTT failed.
The Tribunal ruled that the amount assessable under ToAA was Nil. The Tribunal also ruled that HMRC did have a discretion to apply PAYE as they saw fit, which would appear to mean that the Loan Charge was never needed, but that they could not apply that discretion retrospectively. However, since the issue in the case of Mr Hoey was one of collection it was, rather strangely, a matter for the County Courts to decide.
It looks like the matter will be appealed further. https://gofund.me/b01f74f3
"Fundamentally, it is vital to ALL legal challenges of DR schemes (and the Loan Charge) that HMRC are not permitted to retrospectively exercise a discretion that would allow them to dispense with any need to assess employers, agencies or end users, indeed anyone at all; to dispense with all time limits and taxpayer safeguards and which would allow HMRC to pursue individuals “without temporal limitation”......We are able to confirm that the appeal will proceed"