OCO Ltd and Toughglaze (UK) Ltd v Revenue and Customs (PROCEDURE : Other)

PROCEDURE� whether FTT has power to reconsider decision in principle relation to PAYE Regulation 80 determination and NICs s8 decision applying ex p Hay and Larner v Warrington (cases decided prior to inception of current tribunal framework set in TCEA 2007 and Tribunal Rules) � yes � whether power should be exercised to take account of caselaw not before the tribunal � no � taking account of provisions for review in current tribunal framework � application to reconsider refused

The FTT�s decision upheld the PAYE determinations and NICs decisions in principle on the basis that if the parties could not settle the amounts of the determinations and decisions they could revert to the tribunal. The Tribunal rejected the redirection and Antoniades /Autoclenz arguments but found in HMRC�s favour on the Ramsay argument.

The current decision deals with� HMRC�s subsequent application of 18 July 2017 for the FTT to reconsider its decision on principle on the redirection issue in the light of the Supreme Court�s decision in RFC 2012 PLC (in Liquidation) (formerly The Rangers Football Club PLC) v Advocate General for Scotland [2017] UKSC 45 . The FTT�s decision did not take account of the Supreme Court�s decision which was published at 9.45am on 5 July 2017 and which had been released to the parties in that case on embargo to the parties on 28 June 2017.

Following release of the FTT�s decision on 1 July 2017, HMRC set out its view in a letter of 5 July 2017 that there appeared to be an error of law in the FTT�s decision in not taking account of the Supreme Court�s decision and that HMRC wished to make an application for review of its decision and that the application would be set out fully within 14 days together with proposed directions for submissions. HMRC�s subsequent letter of 7 July accepted that they were unable to rely on Rule 41 as an application for permission to appeal had not been submitted to the Tribunal.

The appellants submit that while the tribunal could deal with quantum if the parties were unable to reach agreement, there is no basis for it revisiting its decision of principle. They point out that both ex p Hay and Larner pre-date the Tribunal Rules which now exclusively govern the position and that in any event ex p Hay positively undermines HMRC�s argument because (at pg 73) it makes it clear that attempting to re-open a decision once made is �contrary to the best interests of justice and the due administration of justice.�