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You are here: BAILII >> Databases >> First-tier Tribunal (Tax) >> Lobler v Revenue & Customs [2013] UKFTT 141 (TC) (12 February 2013) URL: http://www.bailii.org/uk/cases/UKFTT/TC/2013/TC02539.html Cite as: [2013] UKFTT 141 (TC) |
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[2013] UKFTT 141 (TC)
TC02539
Appeal number: TC/2011/5621
INCOME TAX – partial surrender of life policies – taxable income arising under chapter 9 Pt 4 ITTOIA – outrageously unfair effect ton taxpayer –application of HRA 1998
FIRST-TIER TRIBUNAL
TAX CHAMBER
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JOOST LOBLER |
Appellant |
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- and - |
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THE COMMISSIONERS FOR HER MAJESTY’S |
Respondents |
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REVENUE & CUSTOMS |
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TRIBUNAL: |
JUDGE CHARLES HELLIER |
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KAMAL HOSSAIN FCA FCIB |
Sitting in public at Bedford Square WC1B 3DN on 7 September 1012
The Appellant in person
Jack Lloyd for the Respondents
© CROWN COPYRIGHT 2013
DECISION
The facts in more detail.
5. There was no dispute about the facts.
The legislation
The Application of the Legislation.
Other considerations
23. However the authorities in relation to rectification suggest that the “party seeking rectification must show that: (1)the parties had a common continuing intention, whether or not amounting to agreement, in respect of the particular matter in the instrument to be rectified; (2) there was an outward expression of accord; (3) the intention continued at the time of execution of the instrument sought to be rectified; and (4) by mistake, the instrument did not reflect that common intention.”(Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; and see also the comments thereon in Daventry [2012] 1 WLR 1333). What is missing in Mr Lobler’s case is the element of common intention. There was nothing before us to suggest that Zurich had any intention at all in relation to the withdrawals sought by Mr Lobler.
27. Third, although section 7 of the Act provides that Mr Lobler may rely on a Convention right before this tribunal if he claims that HMRC have acted in a way which, by virtue of section 6 is incompatible with a convention right, section 6(2) provides that section 6 does not apply if, as a result of one or more provisions of primary legislation, HMRC could not have acted differently. It seems to us to be clear that HMRC could not have acted differently in their interpretation of the legislation, but it may be arguable that they could have decided not to make the changes to Mr Lobler’s self assessments in reliance on their power of management of the tax system in section 1 Taxes Management Act 1970. But the jurisdiction given to this tribunal in a case such as this does not extend to making orders to overturn (or “review”) the administrative process of HMRC. Section 31 TMA permits the bringing of an appeal against an amendment to a self assessment, but not against the decision which resulted in the amendment: that gives us power to adjudicate on the amount of the assessment and whether it was made under the powers given by the Act, but not on the decision to make it. The power to review HMRC’s decision rests with the High Court (see eg paragraphs [39ff] HMRC v Hok Ltd [2012]UKUT 363 TCC).
28. Thus with heavy hearts we dismiss the appeal.
CHARLES HELLIER
TRIBUNAL JUDGE