Having digested the latest FOIA disclosures, I have a theory.
It might well be totally contradicted by other materials or just otherwise plain wrong. But, for the time being, it is what I believe. More than willing to be corrected (as always).
1/5
My thesis is that the loan charge was devised within the anti-avoidance team.
I do not believe that Jim Harra was responsible for its genesis or development.
I believe he is fundamentally opposed to the loan charge as a concept.
2/5
I think he recognises its unfairness and also the political mess it has caused (i.e. “debacle”). However, there lies the problem.
Jim is a civil servant and believes his primary duty is to his political leaders.
3/5
For as long as they want the loan charge to remain in force, Jim’s job is to support that policy. (There are probably many other tax policies that Jim personally opposes but will defend.)
As head of HMRC, Jim also owes a duty of care to his staff.
4/5
I will let others comment on my thesis and how this guides people going forward.
5/5
• • •
Missing some Tweet in this thread? You can try to
force a refresh
I have eventually had a chance to look through the recent FOIA disclosures. whatdotheyknow.com/request/emails…
I have set out some comments in the tweets that follow. Some comments have already been made by me and by others.
I’m sure this e-mail has been disclosed before in another context.
But it is worth remembering that Jim Harra recognised as “principled” the main objection to the loan charge – being its retrospection and its giving HMRC a second bite of the cherry.
Here Jim Harra makes clear his low esteem of the Loan Charge Action Group.
Other disclosures show that that view is shared within HMRC. There is a later e-mail from LCAG to HMRC which should have pacified matters.
Although statute provides that the employee is liable for income tax on employment income (s13), elsewhere in the Act (s684) it is made clear that the PAYE regs “have effect despite anything in the Income Tax Acts”.
2/4
As the FST then says “ in some circumstances the law allows HMRC to recover the tax due directly from the employee”. However, those circumstances are carefully prescribed and are subject to appeal rights.
3/4
Some interesting lines from the Government and its supporters today.
My question is whether they will apply these same standards to taxpayers who were duped into joining loan schemes and have been punished with the loan charge.
1/6
From Jacob Rees-Mogg @Jacob_Rees_Mogg :
Justice must be done … there must be an appeals process 2/6
The presence of an appeals system is important per JRM.
He emphasises the importance of fairness and states how MPs “must act” whenever they see something incompatible with natural justice. 3/5
The latest disclosures relate to a request for meta-data. This is information that relates to the handling of an FOIA request, and not merely the original underlying information.
This final set of tweets shows a memo prepared in response to a request.
1/15
Senior officials had hoped to and continued to withhold data.
2/15
As can be seen, it was not just senior civil servants but the FST himself has had to consider questions of disclosure.
3/15
This is a draft memo to the FST (by then Jesse N).
Interesting that the “retrospection” challenge was reworded.
1/11
Again, this is one of the causes of dissonance.
HMRC’s “belief” is based on experience of dealing with the wealthy tax avoiders and presumably very little action taken in relation to contractors for so many years.
2/11
A very sad by-product of Brexit. Had the 2019 election not taken place, the retrospective nature of the loan charge might have been removed.
3/11
Comment HJ1 is very revealing and probably lies at the heart of the disonance in this debate. Tax pros usually consider Net pay to be TAXABLE SALARY - TAX - NI (i.e. fees disregarded).
Normal people consider NET pay to be what ends up in the pocket (i.e. fees taken into account).
Ditto re HJ3. The original wording was full of jargon that many in the tax world just do not realise is meaningless to normal people.
At least, on this occasion, HJ recognised the position from the perspective of the tax-muggle.
The final paragraph is typical of an approach that's evolved over the past 20 years. Previously, common sense arrangements could be made locally. Now HMRC require an enforceable debt to be crystallised BEFORE negotiating payment terms. The balance of power is tilted towards HMRC.