This page contains information about James Kessler QC's Freedom of Information case against HMRC, Kessler v HMRC.
Those interested in the case may download the following documents:
The Decision of the Information Tribunal
Kessler v
HMRC
Appellant's
main submissions
On the secret submission issues: Appellant's submissions on confidentiality
For a short summary Article in Taxation
Ultimately, the point at stake is whether a fully informed debate on policy issues relating to the tax system can take place in the UK.
(The policy issue here was whether the tax definition of trustee residence, which was in force from 1965 to 2007, was in breach of EU law. HMRC said that it was. Chris Vajda QC, a leading EU lawyer could not agree. Proper debate on the point was not possible, as HMRC did not disclose why or how they had reached their view.)
HMRC successfully persuaded the Tribunal not to order disclosure of the documents sought.
However, the Tribunal "urged HMRC to provide an updated and fuller public statement of reasoning" (decision para 81) which is essentially what the application had been asking for. The Tribunal also criticized HMRC for the way they handled the matter - HMRC's view was "bald and substantially unexplained" - para 65.
So there is something in the decision for both sides.
At present HMRC refuse to do what the Tribunal urged should be done, and the issue of whether HMRC will ever provide the fuller public statement of reasoning which the Tribunal urged them to do is still outstanding.
The other - somewhat sinister - aspect of the case is the decision of the Tribunal to accept secret submissions from HMRC which the appellant was not allowed to see. English common law and European human rights law understand a fair trial to be one where each side hears the evidence and arguments put forward by the other. Indeed, there is not much point in having a trial if one party does not know the case it has to answer. It is unfortunate that this aspect of the case is not to be reviewed in a higher court, but after some vacillation I decided to follow up the invitation of the Tribunal to seek the statement which they urged HMRC to provide, and to leave this point for another litigant. I hope it will prove to be an aberration.
James Kessler QC
15 Old Square
Lincoln's Inn
WC2A 3UE
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information on how to order
books by James Kessler.