Vision HR Solutions Limited, R (on the application of) v The Commissioners for HMRC
[2023] EWHC 1659 (Admin)
Oculus Ltd v Commissioners for HMRC & Anor
13 May 2024
[2024] EWHC 1102 (Admin)
High Court
A company challenged HMRC for issuing a warning about a tax avoidance scheme. Most of the company's arguments were rejected, but the court will hear an argument about whether HMRC had the right to issue that warning.
Key Facts
- •Oculus Ltd (Claimant), a Malta-registered company, provides services through UK agents Griffith Anderson Ltd (GAL) and Umbrella Contracts Ltd.
- •HMRC suspected GAL of promoting a tax avoidance scheme and issued a Scheme Reference Number (SRN).
- •The SRN requires notification of workers, potentially exposing the Claimant to significant penalties for non-compliance.
- •The Claimant challenged the SRN via judicial review, arguing breaches of EU law, GDPR, the Withdrawal Agreement, and the right to silence, and that the accompanying form AAG6 was ultra vires.
- •GAL had a right of appeal to the First-Tier Tribunal (Tax Chamber), which dismissed their appeal.
Legal Principles
Free Movement of Capital and Right to Establish (EU law)
Treaty on the Functioning of the European Union, EU-UK Withdrawal Agreement
General Data Protection Regulation (GDPR)
GDPR
Article 5 of the Withdrawal Agreement
EU-UK Withdrawal Agreement
Right to silence (Article 6 ECHR)
European Convention on Human Rights
Ultra vires (Sections 312ZA and 316 of the Finance Act 2004, Tax Avoidance Schemes (Information) Regulations 2012)
Finance Act 2004, Tax Avoidance Schemes (Information) Regulations 2012
Abuse of process
Common law
Interim injunction test (American Cyanamid)
American Cyannamid Ltd v Ethicon Ltd [1975] AC 396
Standing in judicial review
Jones & Ors v The Commissioner of Police for the Metropolis [2019] EWHC 2957 (Admin)
Outcomes
Application for permission to seek judicial review refused on grounds 1-5.
Alternative remedy available through the First-Tier Tribunal; grounds 1-5 unarguable due to the 2018 Act overriding EU law, lack of discrimination, justified interference, lack of applicability of the right to establish, no unlawful processing of data under GDPR, and lack of direct effect of the Withdrawal Agreement. The right to silence was also not breached.
Permission granted to proceed with judicial review on ground 6 (ultra vires - form AAG6).
Arguable that the information in form AAG6 is not ‘prescribed information’ under section 312ZA of the Finance Act 2004 and the 2012 Regulations, and that section 316 does not empower HMRC to require additional information beyond that prescribed.
Application for interim relief dismissed.
No arguable case for grounds 1-5; with respect to ground 6, although a serious issue to be tried exists, the balance of convenience does not favor granting relief due to the equally balanced prejudice to the Claimant and the workers.
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