Loan scheme promoter must provide data

rock hyrax
istock_uniquesafarieye_aw
Share this content

The first tier tribunal (FTT) has ruled that Hyrax Resourcing Limited must provide details to HMRC of the remuneration contractor’s loan scheme it promoted, and the taxpayers who signed up to use it.

A hyrax is a small chubby rodent native to Africa and the Middle East, but the Hyrax disguised remuneration loan scheme was a successor to K2 , the scheme made famous by the involvement of comedian Jimmy Carr.

The FTT did not consider the effectiveness of the scheme itself, but whether or not the promoter should have provided details of it to HMRC under the Disclosure of Tax Avoidance Scheme (DOTAS) rules.

It is possible that even without such disclosure, HMRC could have identified the taxpayers involved, but requiring Hyrax to provide disclosure under DOTAS will make the process much easier. HMRC also estimates that disclosure will result in the payment of £40m in tax.

Using DOTAS

DOTAS is important as a way for HMRC to identify potential tax schemes, as it requires both the scheme promoter and its users to notify HMRC of their involvement, and for promoters to provide details of how the arrangement works.

Failure to comply can result in significant penalties. If Hyrax does not turn over the information HMRC has requested, it could face a penalty of almost £6m plus additional daily penalties of £5,000 per day for continued non-disclosure.

Why did Hyrax not disclose?

The case arose because Hyrax did not consider that the scheme was disclosable under DOTAS. HMRC relied heavily in court on comparing the similarities between the Hyrax scheme and K2 (and earlier iterations of the same idea).

Hyrax chose not to present any evidence to rebut this but instead concentrated on a series of often highly technical objections to various parts of HMRC’s case.

Clash of QCs

The approaches taken by the legal teams on each side provide an interesting contrast.

Robert Venables QC, for Hyrax, focused on a forensic analysis of the legislation and HMRC’s actions, seeking to undermine HMRC’s case on technical and procedural grounds.

Fairly early in proceedings, for example, he sought to have the majority of HMRC’s evidence disallowed on the basis that it had not been entered into evidence correctly (the judge disagreed).

Akash Nawbatt QC, for HMRC, argued for a broader view, urging the judge to draw adverse conclusions from the choice of Hyrax Resourcing Ltd not to give evidence, or arguing that that judge Mosedale should make inferences about the Hyrax scheme based on what was known about K2.

The difference in approaches is evidenced by arguments over the way HMRC had obtained information about the Hyrax scheme.

Venables argued that, for the tribunal to have jurisdiction to apply an order to disclose, a strict reading of the DOTAS legislation required HMRC to fully describe the arrangements and then satisfy the tribunal that they actually existed. He argued that factual inaccuracies by HMRC made its information requests invalid.

The judge preferred to interpret the legislation by considering what Parliament intended it to achieve. She concluded that since the purpose of the legislation was to provide HMRC with information to enable schemes to be investigated, Parliament cannot have intended HMRC to be required to know all the facts before the process started.

Wider impact 

The Hyrax case is unlikely to have much of an impact on most taxpayers. It could be relevant for anyone who has used a tax avoidance scheme that has not been reported under DOTAS.

However, it is a reminder that modern courts find it relatively easy to look beyond the letter of the law in order to interpret Parliament’s intention and to give effect to it on that basis. 

About Andrew Robins

Andrew Robins

Andrew Robins is a partner in RSM’s London private client tax team, advising on all areas of UK personal taxation. He specialises particularly in advising high net worth individuals, non-UK domiciled individuals, non-UK trusts, and members of corporate remuneration plans such as employee benefit trusts and international pension plans.

Replies

Please login or register to join the discussion.

avatar
05th Apr 2019 13:11

The judge got something wrong per my comment in the link below, but it was hopeless for RVQC to try argue DoTAS only applies to tax avoidance per Willoughby.

https://www.accountingweb.co.uk/any-answers/interesting-dotas-case-0

Thanks (1)
avatar
05th Apr 2019 14:25

Andrew suggests at the end that interpreting law in line with the intention of Parliament is a modern development.

I remember learning about different rules/methods of interpretation a couple of decades ago and it wasn't new then.

Thanks (0)
avatar
to AnnAccountant
08th Apr 2019 10:44

AnnAccountant wrote:

... the intention of Parliament is a modern development.

I never quite bottomed out how the 'intention of Parliament' is not exactly what is written in the statute.
If our glorious representatives/delegates had NOT wanted what was written then why did they vote it through.
Anyway, in general the traduction of 'the intent' is always in the direction that gleans the most money for the executive.
Thanks (0)
avatar
to dgilmour51
08th Apr 2019 16:02

I had the same thought at 18 when studying this for A Level. I have since learnt that it is oversimplistic.

In reality, no one can fully envisage the events to which what you have written will be applied.

If you go through life playing fair and to a decent set of personal standards, you might not get rich, but you won't be afraid either.

In contrast, if you keep seeing how close you can get your hand to the stove, you will get burned from time to time.

Thanks (0)

Related content