Stephen Charles Willey v Revenue & Customs [2013] UKFTT 328 (TC) (03 June 2013)
DECISION
Background
1.
The appellant is the scheme administrator of the Hesco Military Products
Limited Directors’ Pension Scheme (“the Scheme”). He appeals against a decision
of the respondents to assess him to a scheme sanction charge pursuant to
regulations made under section 255 Finance Act 2004 (“FA 2004”). As appears
below, the sum in issue is £15,000.
2.
The assessment under appeal arises out of an unauthorised payment made
by the Scheme in relation to one of its members, a Mr Rory Fordyce. There is no
dispute that there was an unauthorised payment. The appellant contends however
that the respondents ought to discharge his liability to the scheme sanction
charge pursuant to section 268 FA 2004 on the ground that it is not just and
reasonable that he should be liable for the charge. In the alternative he contends
that the sum assessed is wholly unjust and unreasonable and ought to be set
aside.
3.
There is little if any dispute in relation to the facts. Before setting
out our findings of fact we consider the statutory framework. All references
are to FA 2004 save where otherwise noted.
Statutory Framework
4.
It is important for the purposes of this decision to consider the
context in which the FA 2004 introduced significant changes to the tax
treatment and regulation of pension schemes. It replaced various different
regimes applying to different types of pension products with a single regime
for registered pension schemes. The new regime was introduced with effect from
6 April 2006, otherwise known as “A-day”.
5.
Prior to 6 April 2006 compliance with the various rules and regulations
applying to pension schemes was via a pensioneer trustee. Pensioneer trustees
have now been replaced. Section 270 FA 2004 requires every registered pension
scheme to have a “scheme administrator” who is appointed in accordance with the
rules of the scheme. The scheme administrator is responsible for discharging certain
functions imposed by the FA 2004. Those functions include various accounting
and reporting requirements.
6.
FA 2004 contains a prescriptive regime in relation to the payments that
registered pension schemes are authorised to make and the consequences of
unauthorised payments. The rationale is to ensure that the tax reliefs and
exemptions in respect of contributions to registered pension schemes are
available only to the extent that the pension schemes genuinely make provision
for the benefit of members on retirement, subject to various statutory limits.
The compliance regime and reporting requirements set out in FA 2004 are
directed towards the same end.
7.
The only payments which a registered pension scheme is authorised to
make to a person who is or has been a member of the pension scheme are those
specified in section 164. Similar restrictions apply to payments to a
sponsoring employer which are restricted to those specified in section 175. Any
payment to a sponsoring employer which is not authorised by section 175 is
known as an “unauthorised employer payment”.
8.
Section 175 provides that “authorised employer loans” are authorised
payments for these purposes. Section 179 provides that a loan is an authorised
employer loan if, broadly:
(1)
The amount loaned does not exceed 50% of the market value of the assets
of the pension scheme,
(2)
The loan is secured by a charge of adequate value,
(3)
The repayment terms provide that:
(a)
The rate of interest is not less than a rate prescribed by HMRC,
(b)
The loan repayment date is not more than 5 years after the date on which
the loan was made,
(c)
Certain minimum repayments are made during the period of the loan.
9.
The old regime for tax relief on pensions included a similar restriction
on loans which were not for a fixed term, at less than a commercial rate of
interest and not evidenced in writing - Retirement Benefits Scheme
(Restriction on Discretion to Approve)(Small Self-administered Schemes)
Regulations 1991.
10.
Where an unauthorised employer payment is made there is a charge to
income tax pursuant to section 208 at the rate of 40% on the person to whom the
payment is made.
11.
An unauthorised payment, including an unauthorised employer payment, may
also be a “scheme chargeable payment” pursuant to section 241 unless it is
exempted by that section. Where there is a scheme chargeable payment, section
239 provides as follows:
“(1) A charge to income
tax, to be known as the scheme sanction charge, arises where in any tax year one
or more scheme chargeable payments are made by a registered pension scheme.
(2) The person liable to
the scheme sanction charge is the scheme administrator.”
12.
The rate of the scheme sanction charge is 40% of the scheme chargeable
payment. Section 240 provides that this is reduced if an unauthorised payment
charge has been paid. The amount of the reduction is the lesser of (1) 25% of
the scheme chargeable payment, and (2) the amount of tax paid under section
208.
13.
Section 268 provides for relief for the scheme administrator from the
scheme sanction charge in relation to unauthorised employer payments as
follows:
“(5) The scheme
administrator may apply to the Inland Revenue for the discharge of the scheme
administrator’s liability to the scheme sanction charge in respect of a scheme
chargeable payment on the ground mentioned in subsection …(7).
…
(7) In any other case, the
ground is that –
(a) the scheme
administrator reasonably believed that the unauthorised payment was not a
scheme chargeable payment, and
(b) in all the
circumstances of the case, it would not be just and reasonable for the scheme
administrator to be liable to the scheme sanction charge in respect of the
unauthorised payment.”
14.
In broad terms the effect of these provisions in the case of an unauthorised
employer payment is a charge to income tax at 40% on the employer and a charge
to income tax at 40% on the scheme administrator. If the employer pays the tax
charged, the charge on the scheme administrator is reduced to 15%. The scheme
administrator can apply to be discharged from liability under section 268.
15.
There are various tax charges which can apply when funds are paid out of
a registered pension scheme, either as authorised or unauthorised payments. We
did not have a comprehensive analysis of those tax charges but we were referred
to the fact that in certain circumstances there is a tax charge at a rate of
55% on payments out of a scheme. For example on death or where the lifetime
allowance is exceeded. Both parties agreed that the rate of these charges is a
broad brush method to recover the tax relief on contributions and the tax-free
growth of the fund.
16.
The Registered Pension Schemes (Provision of Information) Regulations
2006 require the scheme administrator to report to HMRC amongst other
things any unauthorised payments in a tax year. This report, known as an “event
report”, must be delivered to HMRC on or before 31 January following the end of
the tax year.
17.
Neither party suggested to us that there was any other relevant
reporting requirement on the part of the scheme administrator. We note section
254 makes provision for the scheme administrator to make a quarterly return
where tax is chargeable on the scheme administrator. However that requirement
does not appear to extend to tax chargeable pursuant to section 208 on the
recipient of an unauthorised payment, nor to the scheme sanction charge.
18.
The assessment in the present case was made pursuant to regulations made
under section 255. It is expressed to be an assessment to tax and as such the
right of appeal arises under section 31(1)(d) Taxes Management Act 1970
(“TMA 1970”). The jurisdiction of the tribunal is set out in section 50(6) TMA
1970 as follows:
“If, on an appeal notified
to the tribunal, the tribunal decides –
(a)…
(b)…
(c) that the appellant is
overcharged by an assessment other than a self assessment,
the assessment or amounts
shall be reduced accordingly, but otherwise the assessment or statement shall
stand good.”
Findings of Fact
19.
We heard oral evidence from the appellant and we were also provided with
a bundle of documentary evidence. We make the following findings of fact.
20.
The appellant is a chartered accountant and a chartered tax adviser. Until
the Finance Act 2004 provisions came into effect on 6 April 2006 he acted as a
pensioneer trustee for approximately 100 different pension schemes. When the
new regime came into effect the role of pensioneer trustee disappeared. He took
the view that he would take on the role of scheme administrator without the
burdens associated with being a trustee. In particular he did not want to
expose himself to potential liability as a trustee for breach of trust.
Liability for breach of trust by pensioneer trustees had been limited under the
old regime. He therefore became the scheme administrator for the existing
schemes where he had been the pensioneer trustee and for new schemes set up
after 5 April 2006. He did not realise at that time the extent of the potential
liability of a scheme administrator.
21.
In June 2006 the appellant advised and set up a registered pension
scheme for Hesco Military Products Limited (“the Company”). A bank account was
opened for the Scheme and shortly afterwards the Company paid a sum of £600,000
into the bank account. The appellant was the scheme administrator but not a
trustee of the Scheme. The Scheme’s bank account was operated solely by the
trustees without reference to the appellant. There was no provision for the
appellant to receive information in relation to the operation of the bank
account. He was not a signatory on the bank mandate.
22.
The Company had three directors. Each was notionally entitled to one
third of the assets in the Scheme and was a trustee of the Scheme.
23.
On 7 August 2006 the Scheme made a payment of £100,000 to the Company.
The appellant was not aware that this payment had been made until later. We
describe the circumstances in which he became aware of the payment in more
detail below. In August 2006 the Appellant was not fully aware of his reporting
requirements or the extent of his potential liability as scheme administrator. Nor
was he aware of the approach the respondents would take to reporting failures
by a scheme administrator or to the enforcement of charges against a scheme
administrator under the new regime.
24.
The payment of £100,000 was notionally allocated against Mr Fordyce’s
entitlement under the Scheme. The trustees of the Scheme including Mr Fordyce
intended that the payment to the Company was a loan. The Company in turn paid
the £100,000 to Mr Fordyce’s company, Mobyco Limited, again by way of loan. There
were no written loan agreements and no security for the loans. The trustees of
the Scheme were not aware of the conditions that had to be satisfied before a
loan could be made to the Company. It is common ground that the loan was an
unauthorised employer payment.
25.
In late 2006 the appellant became aware of the loan to the Company. At
this stage Mr Fordyce and the other shareholders in the Company had fallen out
and were negotiating Mr Fordyce’s exit. As part of these negotiations Mr
Fordyce assured the trustees of the Scheme that he would establish a new self
administered pension scheme. It was intended that this would receive an
assignment of the benefit of the loan by the Scheme to the Company together
with his notional share of the balance of the Scheme assets.
26.
During 2007 the appellant was in contact with Mr Fordyce with a view to
assisting him in setting up a pension scheme for Mobyco Limited. In the event,
Mr Fordyce did not proceed to set up a pension scheme for Mobyco. On 7 October
2008 the Company required Mr Fordyce to make arrangements for the repayment of
the loan.
27.
At all material times the Company operated a successful business. In the
year ended 30 June 2006 it made a net profit after tax of £2,034,092. The
equivalent profit for the year ended 30 June 2007 was £3,881,474. It had cash
at bank on 30 June 2006 of £821,206 and on 30 June 2007 it had cash at bank of
£2,450,059.
28.
The appellant ought to have delivered an event report referring to the
unauthorised payment in 2006-07 by 31 January 2008. No such report was
provided. The appellant was not aware of his reporting requirements in that
regard. He had delegated day to day control of the schemes for which he was the
scheme administrator to another individual.
29.
On 1 July 2010 HMRC commenced an enquiry into various aspects of the
Scheme, including the loan by the Scheme to the Company. The appellant dealt
with that enquiry in his position as the scheme administrator. In relation to
the loan he provided the information described above, together with supporting
correspondence.
30.
On 7 December 2010 the Company repaid the loan to the Scheme.
31.
HMRC concluded that the loan to the Company was an unauthorised employer
payment and a scheme chargeable payment. On 10 March 2011 HMRC issued a notice
of assessment to the appellant for £40,000 in respect of the scheme sanction
charge. On 15 June 2011 HMRC issued a notice of assessment to the Company for
£40,000 in respect of the unauthorised payments charge.
32.
On 3 July 2012 the Company paid the £40,000 unauthorised payment charge.
This had the effect of reducing the scheme sanction charge on the appellant to
£15,000. We understand that the Scheme has also paid the scheme sanction charge
but we were told that there remains a possibility that the Scheme will seek
re-imbursement from the appellant. We are not aware as to the terms on which
the appellant may be entitled to any indemnity out of the assets of the Scheme
for liabilities he incurs as scheme administrator.
Decision
33.
The appellant accepts, as he must, that the loan made by the Scheme to
the Company was an unauthorised employer payment. In particular there was no
security and the terms did not satisfy section 179.
34.
The appellant relies on the following factors in support of his
submission that the scheme sanction charge should be discharged:
(1)
The loan was made shortly after A-day and the appellant, together with
other pensions professionals, was unfamiliar with the new regime. HMRC’s
guidance at that time was incomplete.
(2)
If the appellant had been made aware of the Scheme’s intention to make a
loan he would have advised the Scheme of the potential consequences.
(3)
As soon as the appellant became aware of the loan he took steps to assist
the Scheme to correct the position by transferring the loan to a new pension
scheme to be set up for Mobyco Limited. The fact Mr Fordyce did not set up such
a scheme was beyond the control of the appellant.
(4)
The loan has now been repaid together with interest and there is no loss
to the Scheme.
(5)
The scheme sanction charge amounts to a penalty which in all the
circumstances is wholly unreasonable and unjust.
(6)
It is unreasonable that if a sanction charge is payable, the same funds
cannot be paid out of the Scheme without a further charge. In the words of the
appellant this amounts to “two bites of the cherry”.
35.
HMRC submitted that one of the reasons for the tax charges which arise
where a pension scheme makes unauthorised payments is to safeguard the tax
relieved funds in the scheme for the provision of retirement benefits. In
relation to loans the provisions seek to ensure that funds are not loaned in
circumstances where there is a risk they might not be repaid. We accept that
submission.
36.
The appellant submitted that the Company was very profitable and there
was little risk of default. We are prepared to accept that in 2006 and 2007
there was indeed little risk of default given the financial strength of the
Company. However the definition of an unauthorised payment pays no regard to
the financial position of the employer. It seeks to prohibit certain loans by
reference to the particular terms of the loan and by reference to the existence
and adequacy of the security. That is the test which Parliament has enacted and
the appellant cannot import any different test. It is however a factor which we
can take into account in testing the respondents’ decision not to discharge the
appellant’s liability to the scheme sanction charge.
37.
The relief pursuant to section 268(5) refers to “the ground” in
section 268(7). There are two limbs to section 268(7) but they comprise one
ground. In other words, both limbs must be satisfied before the ground is
established.
38.
Section 268(7)(a) provides for relief from the scheme sanction charge
where the scheme administrator reasonably believed that the unauthorised
payment was not a scheme chargeable payment. This must be a reference to the
scheme administrator’s belief at the time the unauthorised payment was made. It
is implicit in this sub-section that the scheme administrator should have
systems in place whereby he is aware what payments are going to be made by the
trustees. Only then will the scheme administrator be in a position to advise as
to the consequences of such payments and effectively protect his own position. Such
systems will also put the scheme administrator in a position to fulfil his
reporting requirements. It seems to us therefore that this provision is
generally aimed at relieving a scheme administrator where he has been misled or
otherwise misinformed as to the nature of a payment to be made by the pension
scheme.
39.
The appellant accepts that as scheme administrator he had no systems in
place to identify whether unauthorised payments were being made. Indeed he had
no systems to identify in advance any payments being made. We cannot see therefore
that he could reasonably have believed that the payment was not a scheme
chargeable payment. The ground in section 268(7) is not satisfied and the power
to discharge liability does not arise.
40.
Even if the appellant had reasonably believed that the unauthorised
payment was not a scheme chargeable payment, we are not satisfied that it would
not be just and reasonable for him to be liable to the scheme sanction charge.
We take into account all the factors urged on us by the appellant as set out
above. In particular:
(1)
The transaction took place shortly after A-day, although the loan would
not have been permitted under the previous regime in any event. The appellant
suggested in a written submission that HMRC’s guidance at the time was
incomplete. He did not take us to that guidance and we are not able to conclude
on the basis of the evidence before us that the guidance was incomplete.
(2)
We have no reason to doubt that if the appellant had been aware of the
payment before it had been made then he would have advised the Company that it
would be an unauthorised payment. We accept that in those circumstances the
loan would probably not have been made, or would only have been made as an
authorised loan.
(3)
We accept that as soon as the appellant became aware of the payment he
took steps to help the trustees to regularise the position. He could not undo
what had been done, but he did attempt to “convert” the unauthorised loan into
an authorised payment to another registered pension scheme.
(4)
We accept that the loan was eventually repaid with interest and the
transaction itself resulted in no loss to the pension scheme. We also accept
that at the time of the loan to the Company there appeared to be little risk
that it would not be repaid.
41.
Taking all the circumstances into account we consider that it remains
just and reasonable for the scheme sanction charge to apply. The reason the
unauthorised payment was made was because the appellant completely failed to
have a system in place to identify the nature of payments before they were
made. If such a system had been in place the appellant would have been in a
position to advise the trustees as to the consequences of the proposed loan.
42.
The likelihood of default by the Company is not a significant factor. There
is always a risk that the financial position of a sponsoring employer will
change. The legislation is highly prescriptive as to the requirements for a
loan to be an authorised payment. The requirements themselves are very
straightforward and they are designed to eliminate or minimise any risk to the
fund. There was no excuse for the compliance failure in the present case.
43.
The fact that the loan has been repaid and the funds could be the
subject of a further income tax charge if another unauthorised payment were to
be made is in our view irrelevant to the issue under Section 268(7)(b). Mr
Clarke for the respondents accepted that the scheme sanction charge was there
in part to act as a deterrent. The answer to the appellant’s complaint that
HMRC are having two bites of the cherry is not to make any further unauthorised
payments.
44.
The appellant relies on the fact that where the sponsoring employer has
paid the unauthorised payment charge of 40%, the scheme administrator is left
with a charge of 15%. The total charge of 55% is equivalent to the 55% maximum
charge which arises on termination of a scheme on the death of a member. He
goes on to argue that in those circumstances the funds should not continue to be
subject to the tax regime applicable to registered pension schemes and that the
scheme sanction charge gives rise to the possibility of double taxation. If
instead of a loan there had been a payment outright to the Company the
appellant argues that there would be no possibility of double taxation.
45.
There is no statutory basis upon which the appellant can argue that
where an unauthorised loan is repaid then those funds in the Scheme should not
be subject to a further unauthorised payment charge. The appellant is seeking
to read into the legislation a provision which simply does not exist. We do not
accept that this factor, either on its own or together with the other matters
relied on by the appellant makes the decision of HMRC not to discharge the
scheme sanction charge in any way unfair.
46.
In all the circumstances we are not satisfied that HMRC was wrong to
refuse to discharge the appellant’s liability for the scheme sanction charge.
47.
In the alternative to his submission that he ought to be discharged from
liability pursuant to section 268, the appellant made the following further submissions:
(1)
That the scheme sanction charge is an unlawful interference with his
right to the peaceful enjoyment of his possessions pursuant to Article 1 Protocol
1 of the European Convention on Human Rights (“Article 1”). As such it is
liable to be set aside by the tribunal as being unreasonable and unjust.
(2)
That the scheme sanction charge is a penalty which engages his rights
under Article 6 of the Convention (“Article 6”)
48.
In certain circumstances the tribunal can set aside a penalty where it
is disproportionate. In HM Revenue & Customs v Total Technology Limited [2012] UKUT 418 (TCC) the Upper Tribunal considered the circumstances where that
power arises in relation to the default surcharge regime applicable to value
added tax. Whilst we are concerned with direct taxes, the Upper Tribunal
considered that the circumstances in which Article 1 is engaged are largely
co-extensive with the jurisdiction under EU law which governs value added tax.
49.
We deal firstly with the appellant’s submission that the scheme sanction
charge is an unlawful interference with his Article 1 rights. The European
Convention on Human Rights takes effect by virtue of the Human Rights Act 1998.
Article 1 provides as follows:
“ Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions
provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties.”
50.
The authorities in relation to Article 1 in the context of tax and
penalties were reviewed by the Upper Tribunal in Total Technology Engineering
Ltd at [50] to [63]. We do not propose to repeat what is said there. The
authorities recognise that the State has a wide margin of appreciation in enacting
laws to secure the payment of taxes and penalties. In relation to the
imposition of taxes, the measure must not be “devoid of reasonable
foundation” (See R (oao Federation of Tour Operators v HM Treasury
[2008] STC 2524. A penalty must not be disproportionate having regard to
the aim of the policy it is seeking to implement.
51.
There was some discussion during the hearing as to whether the scheme
sanction charge is properly to be viewed as a charge to income tax, as it is
described in section 239, or whether it is in reality a penalty. If it is the
former then the margin of appreciation will be wider than if it is the latter.
52.
The Human Rights Act 1998 (“HRA 1998”) gives effect to Convention
rights. Section 3 HRA 1998 provides as follows:
“ (1) So far as it is possible to do so, primary
legislation and subordinate legislation must be read and given effect in a way
which is compatible with the Convention rights.
(2) This section--
(a) applies to primary legislation and subordinate
legislation whenever enacted;
(b) does not affect the validity, continuing operation
or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation
or enforcement of any incompatible subordinate legislation if (disregarding any
possibility of revocation) primary legislation prevents removal of the
incompatibility.”
53.
Acts of public authorities are regulated by section 6 HRA 1998 which
provides:
“ (1) It is unlawful for a public authority to act in a way which is
incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if--
(a) as the result of one or more provisions of primary
legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of or made
under, primary legislation which cannot be read or given effect in a way which
is compatible with the Convention rights, the authority was acting so as to
give effect to or enforce those provisions.
(3) In this section "public authority"
includes--
(a) a court or tribunal, and
(b) any person certain of whose functions are
functions of a public nature,
but does not include either House of Parliament or a
person exercising functions in connection with proceedings in Parliament.”
54.
There is a helpful discussion in Bosher v HM Revenue & Customs
[2012] UKFTT 631 (TC) of the circumstances in which the tribunal can set
aside direct tax penalties which are disproportionate. That decision must be
read subject to the decision of the Upper Tribunal in Total Technology
Engineering Limited which concerned penalties in the context of value added
tax. In Bosher the tribunal was concerned with fixed penalties under section
100B TMA 1970. In particular the jurisdiction under section 100B(2)(a)(iii) to
reduce a penalty which appeared to be incorrect. The tribunal held that
“incorrect” should be construed as including incorrect by virtue of being
disproportionate hence applying section 3 HRA 1998 and giving effect to Mr
Bosher’s Article 1 Convention right.
55.
In the present case our jurisdiction is defined by section 50(6) TMA
1970. We consider that the term “overcharged” in section 50(6)(c) includes an
assessment which overcharges the taxpayer by virtue of it being devoid of
reasonable foundation in the case of a charge to tax or disproportionate in the
case of a penalty.
56.
We note that the total charge to tax in relation to an unauthorised
employer payment is 55% comprising the 40% charge on the employer and the
reduced 15% charge on the scheme administrator. It is notable that the 40%
charge is on the recipient of the payment, rather than on the Scheme. The total
charge is the same level of charge which arises where funds are paid out of a
scheme on the death of a member or where the lifetime allowance is exceeded.
Both parties agreed that the 55% charge is a broad measure by which the tax
relief on contributions and tax free growth are recovered. In that sense, the
scheme sanction charge, being part of an overall charge of 55% does appear to
be a charge to tax rather than a penalty.
57.
In the event however we do not need to determine whether the scheme
sanction charge is properly to be viewed as a charge to tax or a penalty for
the purposes of the Convention. We do not consider that on any view it is disproportionate,
still less that it is devoid of reasonable foundation and outside the wide
margin of appreciation enjoyed by Parliament. As Mr Clarke submitted the charge
is there in part to act as a deterrent against unauthorised payments. It seeks
to protect the assets in pension schemes and to ensure that the tax reliefs
given to pension schemes accrue for the provision of retirement benefits to
members. We are not satisfied that it is in any way unreasonable or
disproportionate, either generally or in the specific circumstances of the
present appeal. In reaching this conclusion we consider that the factors
referred to above in the context of relief under section 268 are equally
applicable in testing the proportionality and reasonableness of the charge for
the purposes of Article 1.
58.
We do not consider that the fact the same charge arises whether the
funds are removed from a pension scheme as when there is an unlawful loan makes
the scheme sanction charge unreasonable. The charge is a broad measure designed
to ensure that tax relief is available only in respect of retirement benefits
within the limits set down by the legislation.
59.
In the circumstances we do not consider that there has been any breach
of the appellant’s rights under Article 1 or that there is any basis on which
we should reduce the amount of the scheme sanction charge.
60.
Article 6 of the Convention provides as follows:
“ 1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law …
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him;
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on his behalf under
the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if
he cannot understand or speak the language used in court.”
61.
The extent to which Article 6 applies in the present case is debateable
and may depend on whether or not the scheme sanction charge is a penalty.
However, even on the assumption that Article 6 does apply it is not clear to us
in what way the appellant argued that there has been any infringement of his
rights under the article. There is nothing in the material before us to suggest
any infringement. We are satisfied therefore that Article 6 provides no basis
to support the appellant’s case.
Generally
62.
We have considered each ground of appeal raised by the appellant. For
the reasons given above we have concluded that those grounds are not made out.
In the circumstances we must dismiss the appeal.
63.
This document contains full findings of fact and reasons for the
decision. Any party dissatisfied with this decision has a right to apply for
permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure
(First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be
received by this Tribunal not later than 56 days after this decision is sent to
that party. The parties are referred to “Guidance to accompany a Decision from
the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this
decision notice.
JONATHAN CANNAN
TRIBUNAL JUDGE
RELEASE DATE: 3
June 2013
