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The ceasing to have effect argument
The ceasing to have effect argument
Finally, the claimant argues that even if he made a “declaration of eligibility”, s.30 of the 2014 Act had ceased to have effect. This is not correct.
By s.30(13) the section “ceases to have effect when the repeal of Part 1 of the Tax Credits Act 2002 made by Schedule 14 to the Welfare Reform Act 2012 has fully come into force”.
It cannot be said that the repeal of the TCA 2002 has “fully come into force” when applicants (including the claimant until 19 March 2019) continue to receive tax credits where such credits are governed by Part 1 of the TCA 2002.
Whilst Article 2 of the Commencement No.32 Order provides that the “day appointed for the coming into force of section 33(1)(f) of the Act (abolition of tax credits) and the repeal of Part 1 of the 2002 Act (but not Schedule 1 or 3), by Part 1 of Schedule 14 to the Act, is 1st February 2019”, that provision did not stop Part 1 of the TCA 2002 continuing to apply to the claimant (amongst many others) after 1 February 2019. That is because Article 3 of the Order contains savings which treat the provisions listed in Article 2 as not coming into force in certain cases including at (2), “the case of an award of a tax credit that has effect for a period that includes 31st January 2019.” That was the position in the present case: the tax credit award which terminated by operation of s.30 had been in place since 6 April 2018 and did not terminate until 19 March 2019.
Appeal 2
The issues which arise for consideration under Appeal 2 are:
- Heading
- Section 1
- w as HMRC v RS (No.2) (TC) [2022] UKUT 246 correctly decided in its interpretation of Article 7(6) of the Welfare Reform Act 2012 (Commencement No.23 and Transitional and Transitory Provisions) Order
- SC946/21/00244 (on appeal UA-2023-001612-TC ) dated 9 December 2020 that he had made a valid declaration of eligibility for tax-free childcare and so his entitlement to tax credits was correctly termi
- SC946/19/02420 (on appeal UA-2023-001611-TC ) dated 9 August 2019 that he was not able to make a new claim for tax credits for any period after 19 March 2019
- The Tribunal’s Statement of Reasons
- The Statutory Framework
- The Claimant’s Submissions
- entitlement period and therefore terminated his tax credits award immediately prior to that date following that termination, HMRC issued various decision notices and other notices, which were subject to a previous appeal. The Upper Tribunal in UA-202
- the 2018/2019 tax year. The decision notice was issued to the claimant on 11 December 2020
- Ground 2: The alleged “declaration of eligibility” was not “valid”
- he was in fact an eligible person, because tax credits were not payable in respect of the relevant period
- Issues raised by HMRC
- Ground 3: S.30 of the 2014 Act no longer applies
- UA-2023-001611-TC
- in relation to Appeal SC946/21/00244 (“Appeal 1”): on 14 March 2019, the
- in relation to Appeal SC946/19/02420 (“Appeal 2”): he was not permitted to apply for tax credits in August 2019
- Factual Background
- The TFC Scheme
- Appeal 1
- The Legal Framework
- by s.5(1) the length of the “entitlement period” is 3 months, subject to any regulations altering that length
- the day on which the declaration was made was 14 March 2019. This was the claimant’s first application
- the “relevant day” was 20 March 2019
- The declaration question
- https://webarchive.nationalarchives.gov.uk/ukgwa/20190317223446/https:/www.gov.uk/tax-free-childcare which contained the portal which the claimant would have used to make his application
- ( https://webarchive.nationalarchives.gov.uk/ukgwa/20190321044737/https:/www.gov.uk/apply-30-hours-free-childcare )
- The validity question
- in this regard, the position is similar to that in HMRC v Secretary of State for Work and Pensions and GS [2023] UKUT 9 (AAC) where the Upper Tribunal considered a regulation containing a requirement
- The “other relevant childcare support” question
- HMRC’s non-ministerial position is also clear from the Explanatory Notes to the 2005 Act
- if he is right, a recipient of the childcare element of WTC would necessarily
- The ceasing to have effect argument
- comity: should the Upper Tribunal follow RS (No.2) in the interests of comity?
- The Legal Framework
- RS (No.2)
- Comity
- The “for the next tax year” argument
- Discussion
- The validity question
- The “other relevant childcare support” argument
- The ceasing to have effect argument
- Appeal 2
- Conclusions