Tax Director of WTT Consulting Ltd.
Specialist tax enquiry firm, with a strong presence in the contractor market
You are correct that a Tribunal hearing to make some sort of sense of the situation will not happen before the 5th April 2019. Partly this is because of a lack of tribunal time and partly (mostly) because HMRC has been working hard to delay those cases in the system that have been waiting for a couple of years or more.
HMRC defend the retrospective nature of the loan charge by arguing that it's "a new tax on a new source". Nonsense.
It's a tax on money paid from 1999 to 2019, which fits a description that was in the statute book in 2010 and which has moved around ever since.
However, to maintain the fiction, HMRC says that tax paid under the loan charge can be used to frank liability for the years in which the loans were made - plus interest -but any excess paid, is not recoverable.
I've never seen a tax that is in effect a non refundable penalty for not accepting an HMRC that has no Judicial or legal sanction.
As to whether what you have is a disguised remuneration scheme, you need to do your research and analyse the scheme because in our experience of perhaps 100+ schemes, surprisingly few (and certainly not as many as HMRC consider) do.
Surely if a dividend has been paid or not is a question of fact backed up by an appropriate Board minute?
I would be of the opinion that to retrospectively claim that a dividend was not received is playing with fire and would possibly mean that the whole return is incorrect.