Cameron
| Jurisdiction | UK Non-devolved |
| Judgment Date | 08 March 2010 |
| Neutral Citation | [2010] UKFTT 104 (TC) |
| Date | 08 March 2010 |
| Court | First Tier Tribunal (Tax Chamber) |
[2010] UKFTT 104 (TC)
Charles Hellier (Chairman)
Bob Crawford of Crawford Herald for the Appellant
Samantha Cheung and Douglas Pate instructed by the General Counsel and Solicitor to HM Revenue and Customs for the Respondents
Gift aid - Finance Act 2002 section 98section 98 FA 2002 - election to carry back to previous year - election to be made on or before taxpayer delivers return under Taxes Management Act 1970 section 8section 8 - election made in an amendment to a return - whether made in time. held: no
1. This is a case where common sense and fairness appear to be on the taxpayer's side. If I were permitted to use only those concepts as my guides I would find for the taxpayer.
2. There is no dispute about the facts.
3. Mr Cameron is a farmer. In the year ended 5 April 2006 he found that old age was creeping up on him and he sold a large part of his farming assets. He realised a substantial sum and wished to use part of it to establish charitable trusts to enable young people to see the world.
4. He spoke to his advisers and was told that if he made a donation to a charity in the year 2006/07 he could obtain gift aid relief on it which could be "thrown back" to 2005/06 against the gains on the sale of his farming assets.
5. Mr Cameron and his advisers worked speedily to compute the gains arising on his disposals. His return was ready for him to sign within less than five months of the end of the tax year. He signed it on 28 August 2006 and it was received by HMRC on 4 September 2006.
6. In August 2006 his advisers also started setting up the trust. There were administrative complications and the trust had to be registered with the Office of the Scottish Charity Regulation (OSCR). Mr Cameron eventually executed the deed establishing the Cameron Travel Scholarship Trust on 3 November 2006. OSCR confirmed its registration in January 2007, and he made a payment to the trustees of £936,000 in that month.
7. On 28 January 2007 Mr Cameron's advisers submitted an amended return for 2005/06 claiming relief by way of carry back, by an election under Finance Act 2002 section 98section 98 FA 2002, for the charitable gift against Mr Cameron's gains and income 2005/06.
8. HMRC enquired into the return. They refused the claim for relief. They said such a claim could only be made in the original return. It was too late to make it in an amended return.
9. They did not put it this way but in effect they said: "if only Mr Cameron had not been so prompt and diligent in submitting his return, if only he had waited until 29 January 2007 before submitting his complete return, then all would have been well and he would have got his relief, but as it was his prompt compliance was his undoing."
10. HMRC say this is the case because of the conditions in section 98. I must now turn to those conditions.
11. Section 98 FA 2002, so far as is relevant, provides as follows:
(1) A person ("the donor") who makes a gift that is a qualifying gift donation within Finance Act 1990 section 25section 25 of the Finance Act 1990 (gift aid) may elect to be treated for the purpose of that section as if the gift were a qualifying donation made by him in the previous year of assessment.
It was not disputed that Mr Cameron's donation to the trust was a "qualifying donation". His aim was to take advantage of the election permitted by this subsection. The section continues:
-
(2) Any such election must be made by notice in writing to an officer of the Inland Revenue-
(a) on or before the date on which the donor delivers his return for the previous year of assessment under Taxes Management Act 1970 section 8section 8 of the Taxes Management Act 1970 (personal return), and
(b) not later than 31 January next following the end of that year.
12. HMRC say that the "date on which [Mr Cameron delivered] his return for the previous year of assessment under section 8" was 4 September 2006. He made no election on or before that date. He was therefore out of time when he delivered his election in his amended return on 29 January 2007.
13. Mr Crawford says that for the purposes of section 98(2) the date on which Mr Cameron delivered his return was the date on which he delivered the amendment to his return, or his amended return, namely 29 January 2007; the election was made in that amended return, and therefore that the election was made on or before the date on which Mr Cameron delivered his return, with the result that his election was made in time.
14. Therefore the issue for me to determine is whether the words "the date on which the donor delivers his return for the previous year…under section 8"...
To continue reading
Request your trial
-
Allan Firth Webster v Claim issued without naming a Defendant under CPR Part 8.2A pursuant to the Order of Master Kaye dated 19th March 2020
...an incorrect tax return on 28 November 2017 he fell foul of S426(6)(a). 26 As Mr Arnfield noted HMRC's position on timing is supported by Cameron v HMRC [2010] UKFTT 104 (TC) (“ Cameron”). The Claimant now accepts that Cameron establishes the principle that a Gift Aid carry-back election m......