Didn't find your answer?

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j11131/TC0...

Although there was no chance of defeating the DA, I am a bit surprised at the penalty, as there are cases where an accountant or other tax professional can potentially rely on their own advice re mitigating/avoiding potential penalties for negligence, let alone deliberate misconduct. See para 224 of the case below for an example:

https://www.pumptax.com/wp-content/uploads/2018/07/Decision-TC.2010.03538-TC.2010.04081-TC.2010.07791-Ernest-Thompson-Terence-Worsfold-Richard-Mungavin-16.07.2018.pdf

Furthermore, the case cited in para 64 to support the finding of deliberate wrongdoing (Carter v HMRC [2018] UKFTT 0729) is not really analogous as it did not involve a tax avoidance scheme. Bizarre also in para 65 that at the same time his wife could escape this penalty by relying on her husband's defective advice and deliberate misconduct (what if just the wife had bought the property relying on his defective advice and deliberate misconduct (it should make no difference that she is a joint buyer)?). So possibly a poor decision in that regard. See also the high hurdle here:

https://www.accountingweb.co.uk/tax/hmrc-policy/tax-agent-accused-of-dis...

Perhaps para 29 here is potentially relevant re evidential requirements: http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j7746/TC0...

Para 3(13) is also interesting - HMRC are clearly suspicious of anyone using BVI companies etc.

Finally, why did HMRC not block this SDLT annuity scheme retrospectively (as they have done in other cases)?

Replies (1)

Please login or register to join the discussion.

avatar
By Justin Bryant
30th Aug 2019 13:45

In fact re the penalty, if you read the Leach VAT penalty case in the link below you will see that my view re DH’s penalty is probably right, as the tribunal must effectively find fraud/dishonesty to justify such a penalty and that was not really borne out by the evidence in the DH case. It’s a high evidential hurdle for HMRC to prove such deliberate (and knowing) misconduct, as it’s tantamount to having to prove fraud/dishonesty, which is traditionally not easy to prove.

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j11144/TC0...

Also, I note the above case is being appealed. See (a similar failed annuity based SDLT scheme case):

http://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j11296/TC0...

Thanks (0)