[2025] UKUT 00278 (TCC)

For Fluid London, the disputed tax years are 2008/09 to 2012/13, and the review decision letter was also written by Ms Robinson. As with Fluid Scotland, the letter noted that the claimant had made contributions to BBTs and subsequently EFRBS for the benefit of certain employees, and that HMRC had issued various Regulation 80 determinations and s. 8 decisions. The letter set out details of the two settlement agreements entered into between HMRC and Fluid London, Fluid London’s claim for repayment under the DRRS, and HMRC’s refusal decision dated 17 June 2021.

In her review of that refusal decision Ms Robinson followed the same format as her review decision for Fluid Scotland. For each of the tax years in question, she accepted that the shortfalls had been treated under the settlement agreements as amounts that HMRC had no power to recover, such that they met the condition in DRRS §3.1.27.4.

For the years 2008/09 to 2011/12 and the income tax referable to a contribution under EFRBS scheme 650 in the year 2012/13, Ms Robinson said that the original Regulation 80 determinations and/or s. 8 decisions were capable of being uplifted, such that the condition of “no power to recover” in DRRS §3.1.27.3 was not met, on the basis of the same reasoning as set out for Fluid Scotland.

As with Fluid Scotland, Ms Robinson’s letter responded to specific representations made by Fluid London that (among other things) HMRC lacked the power to recover any insufficiency of income tax by asking the FTT to increase the assessment. Ms Robinson replied:

“HMRC, were at the time of the settlement in a position to make an application to tribunal to have the value of the assessments uplifted, supported by a recent tribunal case. Thus, protecting the duty.”