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Failure to take account of relevant considerations
Failure to take account of relevant considerations
The third alleged error is an alleged failure to take account of relevant considerations rendering the decision invalid namely that:
HMRC did not issue their Brief until January 2020, which brief itself confirmed that further discussions regarding FNR would be required.
HMRC did not invite group relief or NTLRD claims against the anticipated additional profits until January 2021.
HMRC did not agree the FNR for the Claimant until April 2021.
HMRC still have not issued a closure notice to bring the additional profits into charge so there is no profit against which the NTLRD could be set off and that HMRC could not even give effect to the Deficit Claim if admitted by discharging the tax.
HMRC’s response is that all these matters are irrelevant. Apart from mentioning that the date of the January 2020 Brief was referred to in the Decision and therefore in contemplation there is no suggestion that the various matters were considered in the Decision.
Mr Firth also emphasised that the FTT ought to have considered the following four elements: 1)What are the circumstances which caused the Deficit Claim to be late? 2) When did those circumstances cease to apply? 3) Was there delay following such circumstances ceasing to apply? 4) Whether, even if there was delay, that should nevertheless not be relied on as a reason to reject (this was based on reading into the words “may result” an additional discretion).
- Heading
- Introduction
- Background to JR claim
- law – summary of statutory background
- The Statement of Practice
- HMRC’s Business Brief and further exchanges
- The Decision
- Summary of Grounds
- Powers of judicial review
- Correct approach to construction of Statements of Practice
- Claimant’s Grounds of judicial review
- Discussion of Ground One
- Application of correct interpretation of example to facts
- Ground Two – application of alternative condition (dependency on discussions with inspector ongoing)
- Ground Three
- Discussion
- The Deficit Claim could not be quantified
- When it became clear foreign dividends non-exempt and that credit was for FNR
- Difficulties in establishing and agreeing FNR which applied in Claimant’s case
- Revenue’s 2020 Business Brief
- Other points
- Ground Four and Five not necessary for our decision on the claim
- Ground Four
- Error in assuming claim could be made before any closure notice brought profits into charge
- Claimant’s submissions on 2025 Post-Prudential CA
- Error of law in failing to realise claim to set off NTLRD must be quantified and claim could only be quantified once FNR agreed
- Failure to take account of relevant considerations
- Discussion
- Ground Five
- Conclusions