TC09638 - [2025] UKFTT 01112 (TC)

Fecha: 22-Ago-2025

Analysis

Analysis

15.

The Tribunal's general case-management powers, including relating to disclosure, are subject to the overriding objective of dealing with cases fairly and justly. This includes considerations of relevance and proportionality (in turn, a function of the overall amount at stake in the dispute, and the nature of the issues arising): see RCC v Ingenious Games LLP [2014] UKUT 62 (TCC) (Sales J, as he then was).

16.

Here, it seems to me relevant:

(1)

The amount at stake is about £15m (excluding interest);

(2)

Whilst the Mauritius DTC has been judicially considered, the NZ DTC has not been;

(3)

The Appellants say that they have lost some of the early correspondence, and, "given the number of accountants and trustees involved, may never have had some of it";

(4)

There is some evidence in the extracts of correspondence relied on by Applicants from HMRC going to the In-Time Claim and the Estoppel Issue.

17.

I do not consider there is anything useful or productive for the purposes of this decision can be derived from MacSween. I was not involved in the case, know nothing about it other than what I have been told by the parties, and judgment following a final hearing was reserved and it appears has not yet been handed down. Certainly, no such judgment has been placed before me, I have been shown extracts from a transcript of the oral evidence of one Officer John Bentley (described as the HMRC Compliance project lead for RTW avoidance scheme since May 2016) and submissions have been made - to me - about this evidence; but I do not know what the Tribunal hearing the substantive case made of this evidence. I am also shown an extract of what is said to have been a post-hearing decision concerning disclosure; but that does not bind me, and I cannot assess its persuasive weight. In short, nothing about MacSween takes me anywhere.

18.

As to Categories (1) and (2), I acknowledge that HMRC contends that it has already conducted a reasonable search, and that no further search would yield anything to disclose. However:

(1)

It is not really possible - from my standpoint, and from the information before me - to meaningfully segregate the integrity of the disclosure exercise in relation to Categories (1) and (2) from the disclosure exercise more generally;

(2)

It seems to me that there are realistically arguable concerns as to the adequacy of the overall disclosure exercise conducted by HMRC.

19.

As to the adequacy of the disclosure exercise:

(1)

For 2002, the Appellants have eight documents which are not on HMRC's List of Documents at all;

(2)

The Appellants refer to extracts from correspondence between HMRC and Lansbury's in 2009 and 2011 (ie, during the enquiries) which, at least on the face of it, is inconsistent with what is said to be HMRC's assertion in its Statement of Case (which I have not seen) that HMRC had never represented to any appellant that valid claims had been made;

(3)

The Statement of Case is said not to refer to any of this correspondence. If so, this is striking. There are several potential reasons for this:

(a)

HMRC has the correspondence in its possession custody or control, but does not regard it as relevant;

(b)

HMRC has the correspondence in its possession custody or control, but does not seek to rely on it (meaning it would be outside the normal scope of disclosure in this Tribunal);

(c)

HMRC has the correspondence, but has not disclosed it because it has not realised it has got it, because its search was inadequate;

(d)

HMRC has the correspondence, but has not disclosed it because its analysis of the documents conducted during its search was inadequate;

(e)

HMRC does not have the correspondence (or, more accurately, its own copies of its own letters). That is inherently implausible (especially given the existence of open enquiries); but HMRC has not said what documents it formerly had and what has happened to them.

20.

HMRC's disclosure exercise is alleged to have been inadequate. For the above reasons, and looking at the entirety of the submissions, it seems to me that the allegation has some substance. A remedy for an inadequate disclosure exercise is for the disclosing party to undertake a further search.