Thursday, February 25, 2010

Official: You can't rely on HMRC guidance

To be fair we have known this for some time. The Courts and the the Tribunal (and previously the Commissioners) will always focus on the wording of the law. HMRC's statements of practice, concessions and guidance notes are as they are described 'on the tin'. They are intended to be helpful but they are not the law.

The judgment in a recent Tribunal case reinforced this position. The facts of the case are not relevant to this blog post - other than to note that the taxpayers, Parnalls Solicitors, had sought, to rely on HMRC guidance notes when arguing their case.

In a concluding statement the Tribunal judge, Roger Berner stated:
"Mr Harvey referred us to a number of extracts from HMRC publications and other materials in support of an argument that HMRC were guilty of inconsistency in arguing the case against the Appellant. We do not consider that these were material to our decision, which depends on the law as we have found it and not on any interpretation which might be attributed to HMRC. We do not therefore refer to such materials in our decision, and we make no comment on their validity or otherwise."
HMRC's guidance can be helpful. It may be right, but it may be wrong. And it is of no relevance when it comes to arguing a point of law. In practice any appeal starts with negotiations directly with HMRC. At this stage, if their guidance is helpful by all means refer to it. But such arguments cease to be relevant once your appeal gets to the Tribunal.


  1. This is interesting as there seems to be a different view coming from the recent Court of Appeal Judicial Review in the case of Gaines-Cooper and others which seems to suggest that, if IR20 (i.e. HMRC's published guidelines) had indicated that he was non-resident then HMRC might have been bound to follow their guidance, notwithstanding that the guidance was not the law.

    How can we reconcile the two?

  2. I will not argue with the judges on points of law - I am sure they know better than I do.

    However, it is surely a pretty poor state of affairs if tax payers can follow HMRC's guidance and then find them selves in court.

    Irrespective of what the Courts say, surely it ought to be Government policy (and hence HMRC policy) that they won't take you to court if you have followed their guidance!

  3. What about the doctrine of estoppel in situations like this ? It seems rather contrary to natural justice that a course of action can be undertaken on the basis of HMRC comments/statements and then be held liable on the basis that they did not understand the law !