In Rowe, Worrall and others v HMRC [2015] EWHC 2293, members of a large film partnership have been unsuccessful in their application for judical review of Accelerated Payment Notices.

Background

Accelerated Payment Notices (APNs)  were introduced by Finance Act 2014: HMRC may issue a tax avoidance scheme user with an APN, this requires taxpayers to make good any disputed tax upfront, rather than awaiting the outcome of litigation, reversing the cashflow advantage in HMRCs favour.

There is no direct right of appeal against an APN, only the right to make representations regarding the amount.

  • Some 154 members of film partnerships created by Ingenious Media Plc sought a judicial review before the High Court, citing numerous grounds of why they felt that a Partner Payment Notice (a specific form of APN applicable to partners) could not be issued lawfully in any circumstances.

Five grounds

The grounds the appellants cited were as follows (reproduced from the published judgement):

(a) They were issued in breach of the principles of natural justice because they were never afforded the opportunity to make representations as to why in all the circumstances, they should not have been issued. In particular, they had no opportunity to explain why the sums demanded under the notices are not due and owing; and that it was not reasonable to require payment prior to resolution of the parallel appeals on the underlying substantive tax dispute.

(b) The notices are ultra vires because Condition B is not satisfied. The amounts claimed do not result from the chosen arrangements since they do not result directly from an increase or reduction of an item in the partnership return. Further, absent legitimate enquiries, no tax will ever become "due and payable" within the meaning of FA 2014.

(c) The notices were given in breach of the claimants' legitimate expectation that they would not have to pay any tax in dispute until after the 'First-tier Tax Tribunal ("FTT") had decided all relevant issues, HMRC having not exercised the right to postpone repayment.

(d) The decision to give notices was unreasonable/irrational in all the circumstances of their cases.

(e) The exercise of powers under the legislation involves an unlawful interference with property rights under 'Article 1 of the First Protocol (the right to protection of property) ("A1P1") and in breach of Article 6 of the Convention for the Protection of Human Rights' involving the retrospective imposition of a payment obligation the claimants could not have predicted when they joined the partnerships referred to below.

Decision

The court considered each of the grounds for appeal in turn and rejected each one. 

 The full judgment is available here.

 

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