In Mr Ignacius Fessal v HMRC [2015] TC04287 a barrister was successful in arguing that the European Convention on Human Rights (ECHR) prevented HMRC from denying an overpayment relief claim when tax was double charged following a change of basis of taxation.
- Mr Fessal was a barrister and was forced to change his accounting basis under transitional rules when the cash basis was abolished for barristers over the years 2005/06 to 2007/08.
- He overpaid tax and his accountant died and HMRC agreed the transitional provisions.
- HMRC made a discovery assessment but this did not take into account tax overpaid on his change of accounting basis and it refused to allow the barrister a claim for overpayment relief on that tax because he was time barred from making a claim.
- The taxpayer appealed and claimed that HMRC's assessment resulted in double taxation was a breach of his rights to his property under ECHR Article 1 Protocol 1.
The First Tier Tribunal decided that double taxation amounted to a 100% tax penalty and there was an imbalance between general interests of HMRC and the taxpayer. Each taxpayer should pay their fair share of tax and Mr Fessal’s fundamental right was not to be knowingly taxed twice on the same profits. Double taxation is disproportionate and wrongly deprives a taxpayer of their property or possessions.
The taxpayer's appeal was allowed on the ECHR issue.
Comment
HMRC has a tendancy to use double taxation as a fining mechanism and the tribunal found this disproportionate to the public interest.
There were other elements to this case which the taxpayer did not win relating to overpayment relief and timings.
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