Brian Foulser & Doreen Foulser v HMRC
| Jurisdiction | UK Non-devolved |
| Judge | MR JUSTICE MORGAN |
| Judgment Date | 25 January 2013 |
| Neutral Citation | [2013] UKUT 038 (TCC) |
| Respondent | Alun Jones QC (instructed by Keystone Law) for the Appellants Ms Fiona Dewar (instructed by General Counsel and Solicitor for HM Revenue) for the |
| Appellant | [2013] UKUT 038 (TCC) Appeal number FTC/18/2012 PROCEDURE – JURISDICTION- alleged abuse of process –First-tier Tribunal has jurisdiction to deal with alleged abuse of process which affects fair hearing of tax appeal but does not have jurisdiction to consider an allegation of unlawful behaviour in public law - possible misunderstanding of |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Appeal Number | FTC/18/2012 |
[2013] UKUT 038 (TCC)
Appeal number FTC/18/2012
PROCEDURE – JURISDICTION- alleged abuse of process –First-tier
Tribunal has jurisdiction to deal with alleged abuse of process which affects
fair hearing of tax appeal but does not have jurisdiction to consider an
allegation of unlawful behaviour in public law - possible misunderstanding of
Appellants’ case - appeal allowed – case remitted to First-tier Tribunal
Case No: FTC/18/2012
IN THE UPPER TRIBUNAL
(TAX AND CHANCERY CHAMBER)
ON APPEAL FROM THE FIRST-TIER TRIBUNAL
(TAX CHAMBER)
Between :
(1) BRIAN FOULSER
(2) DOREEN FOULSER
Appellants
- AND -
HER MAJESTY’S REVENUE AND CUSTOMS
Respondents
TRIBUNAL: MR JUSTICE MORGAN
Sitting in public at Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A
1NL on 6th December 2012
Alun Jones QC (instructed by Keystone Law) for the Appellants
Ms Fiona Dewar (instructed by General Counsel and Solicitor for HM Revenue) for the
Respondents
© CROWN COPYRIGHT 2013
Foulser v HMRC
Draft 25 January 2013 12:06 Page 2
DECISION
RELEASE DATE: 25 JANUARY 2013
Tribunal Judge: Mr Justice Morgan:
The background to the appeal
1. This is an appeal from the decision of Tribunal Judge Roger Berner, sitting in
the First-tier Tribunal (Tax Chamber) (“the FTT”). The decision was released
on 4th October 2011. The appeal is brought with the permission of the FTT
granted on 10th February 2012. The appeal is on a point of law only, pursuant
to section 11 of the Tribunals, Courts and Enforcement Act 2007.
2. In summary, the matter which was before the FTT was an application by Her
Majesty’s Revenue and Customs (“HMRC”) for an order striking out, or
summarily dismissing, an application which had been made by Mr and Mrs
Foulser for an order effectively debarring HMRC from taking any further part
in the appeal brought by Mr and Mrs Foulser to the FTT against an assessment
to tax made by HMRC.
3. The FTT acceded to the application made by HMRC and dismissed the
application made by Mr and Mrs Foulser on the ground that the FTT had no
jurisdiction to make the order which Mr and Mrs Foulser sought. They now
appeal against the dismissal of their application.
4. The substantive proceedings which were before the FTT, and which had
earlier been before the Special Commissioners, have a long history. Some of
that history was briefly referred to in the evidence what was served in relation
to the applications referred to in paragraphs 2 and 3 above. More information
Foulser v HMRC
Draft 25 January 2013 12:06 Page 3
about the earlier proceedings can be found in the decisions of the Special
Commissioners, the High Court and the Court of Appeal dealing with certain
issues in the earlier proceedings. These decisions are reported at [2005] STC
(SCD) 374 (Special Commissioners), [2006] STC 311 (High Court) and
[2007] STC 973 (Court of Appeal). In summary, in November 1997 Mr and
Mrs Foulser made gifts of shares in a company, BG Foods Ltd. These gifts
were part of a series of steps which they took as a result of advice they
received from their tax adviser, a Mr Gittins. They later submitted self-
assessments for the tax year 1997-1998 in which they claimed hold-over relief
under section 165 of the Taxation of Chargeable Gains Act 1992. The
inspector of taxes amended the self-assessments to disallow the claims to
hold-over relief. Mr and Mrs Foulser appealed, under the Taxes Management
Act 1970, to the Special Commissioners against these amendments. Their
appeals were dismissed by the Special Commissioners (Dr Avery Jones,
sitting alone) in a decision released on 22nd February 2005. Mr and Mrs
Foulser’s appeal to the High Court was dismissed by Lawrence Collins J on
20th December 2005 and their appeal to the Court of Appeal was dismissed on
17th January 2007.
5. The result of the earlier appeals was therefore that Mr and Mrs Foulser were
liable to pay capital gains tax, to be assessed by reference to the market value
of the shares at the date of the gift. The amount of the tax payable was not
agreed and therefore fell to be determined by the FTT, as the successor to the
Special Commissioners. Directions were given for that matter to be
determined at a hearing before Dr Avery Jones in the week beginning 27th
September 2010. The first day of that week was a reading day. The hearing
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