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HICBC ruling in the Upper Tribunal: an update

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We are delighted to announce our Upper Tribunal success in HMRC v Wilkes regarding HICBC disputes. More details can be found via our press release.

HMRC has until the end of July to decide whether or not to seek a further appeal to the Court of Appeal in that case, pending which we cannot yet tell what, if any, remedies other taxpayers may have as a result of our victory to date.

For the time-being, it is important to appreciate that the Wilkes case was about HMRC’s tax collection procedure for HICBC, and it does not affect the validity of the HICBC tax charge itself, which remains in force and payable, nor does it have any relevance to penalties. The Wilkes case only applies to those who: (1) did not submit a Self-Assessment Tax Return to pay the HICBC; and (2) subsequently received a s.29(1)(a) Taxes Management Act 1970 “Discovery Assessment”. The Upper Tribunal decided that HMRC has no power to issue a “Discovery Assessment” in respect of the HICBC to such taxpayers. HMRC does, however, have alternative collection procedures which could validly be used to collect the HICBC where it is due. The scope and use of those different collection procedures are things we propose to raise with HMRC as soon as possible.

We are actively keeping this situation under review and liaising with HMRC about the next steps. Meanwhile, we are endeavouring to ensure that the case – and the wider issues it raises – are widely publicised in the press and media.

As soon as HMRC’s response to the Wilkes case is known, the next steps for other taxpayers should become clearer. As soon as possible, we will inform the public of the position by an article here on our website, and we ask that you keep an eye on that for any updates. If we consider that collective action is merited then we shall invite appropriate taxpayers to come forward.

In the meantime, it is best – for now – to watch and wait.  The exception is if you have received a Discovery Assessment for the HICBC within the last 30 days and so are still in time to make an appeal to HMRC and/or the First-tier Tribunal.  In that case, we recommend that you lodge your appeal without delay.  An appeal can be made to HMRC in writing without any technical formalities.  An appeal to the Tribunal can be made using the appeal form available on its website, here, and that should be very straightforward to complete.  If the Wilkes decision is relevant to you, you should specifically refer to the case by name in your letter to HMRC and/or the “Grounds for appeal” box in the Tribunal’s form.  If necessary, it should be possible for your case to be managed with all the others relating to the Wilkes judgment at a later stage, before it comes to a hearing.

If you have further queries on this topic, or would like to be contacted in the event we are able to take collective action, please make an enquiry.

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