Moore, associate director within the company’s Private Client Group, said it is a “reasonable expectation” that individuals and advisers who organise and report their affairs in line with pronouncements made by HMRC are then deemed to be compliant with the legislation.
However, Moore said recent court cases have illustrated that individuals cannot be certain their tax planning will be seen as compliant, even when they have followed guidance from the Revenue.
“When HMRC publish guidance they must be rigorous in ensuring the accuracy of the information, and the taxpayer must be allowed to rely upon it and have that right upheld by the Courts if necessary,” she said. “However there have been several recent cases where HMRC guidance was relied upon, with varying degrees of success.”
Moore cites a case which took place earlier this month, Cameron v HMRC, in which two seafarers won their claim for a judicial review of their contention that they were entitled to the seafarer’s deduction from their earnings because they had relied upon guidance published by HMRC. Moore notes that, while the guidance does seem to be “at variance with the actual legislation”, because it was deemed that, in at least one case, the taxpayer could have acted differently and qualified for the relief had he thought he did not qualify. Because of this it was decided the pair are entitled to have their cases reviewed.
Meanwhile, in the much publicised case of Gaines-Cooper, the defendant had relied on the HMRC publication “IR20” to calculate the number of days he was in the UK to establish his non-resident status. However, it was held that the guidance could not be relied upon as it was just guidance and not the legislation.
Moore also points to an ongoing case, Mansworth v Jelley, in which HMRC guidance has “wavered on both sides of the fence” and is currently “back where it first started”.
All of this leads Moore to conclude that, while it would be reasonable to assume HMRC guidance can be relied on, “unfortunately, this is not the case”.
