Industry News

Third parties can obtain previous HMRC skeleton arguments to tax tribunal

Thursday, 13 September, 2018

The First-tier Tax Tribunal (FTT) has confirmed that litigation documents submitted to it can be made available to third parties not involved in the litigation but who have a 'legitimate interest'.

The ruling allows the accounting firm KPMG access to HMRC's (and the appellant's) skeleton arguments and statement of case in a dispute about the VAT position of an unrelated firm, Hastings Insurance.

KPMG wants to examine the arguments because they are relevant to its own arguments in a different case, in which KPMG is instructed, said Sinfield J, who is president of the FTT. This, he noted, was a legitimate interest, so the common-law principle of open justice argued in favour of disclosure to KPMG, even though there is no explicit statute granting the tribunal power to disclose court documents.

Sinfield had made a similar ruling at the Upper Tax Tribunal earlier this year, in a case in which a journalist requested papers lodged by a company called Aria Technology. The same requirements of open justice in that case applied to the FTT, said Sinfield. They already apply to the England and Wales High Court and Court of Appeal, and the UK Supreme Court, although the recent Cape v Dring ruling restricts it only to formal documents filed at court, documents generated during the proceedings, and correspondence with the court.

HMRC's argument against disclosure cited the taxpayer confidentiality provisions of s.18 of the Revenue and Customs Act 2005. But Sinfield rejected it on the basis that that section bound only HMRC and not the tribunal (Hastings v HMRC, 2018 UKFTT 0478 TC).

The decision is important as it clarifies the position across the tax tribunals, and should mean that tribunals take a more consistent line in future, said Steven Porter of law firm Pinsent Masons.

'In tax disputes you can have the issue that your opponent, HMRC, knows more than you do about the arguments raised in other cases which may involve similar points to the ones you are arguing', noted Porter. 'Access to statements of case and skeleton arguments could level the playing field slightly for taxpayers, and to a limited degree provide some deterrent from HMRC taking inconsistent positions across different cases', he said.

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