Schedule 36 appeal does not extend to underlying tax issue

In Robert Perlman v HMRC [2021] TC08168, the First Tier Tribunal (FTT) dismissed the taxpayer's appeal against Schedule 36 information notices finding that the information requested was reasonably required to check his tax position.

• Mr Perlman was born in Curacao and had lived in the UK for at least 50 years.
• He claimed the Remittance basis of taxation as he considered that he had a Domicile of origin in Curacao.
• HMRC raised enquiries into his 2014/15, 2015/16 and 2016/17 tax returns.
• HMRC notified Mr Perlman that they considered that he had a domicile of choice in the UK so was not entitled to claim the remittance basis.
• HMRC then requested information and documents about his worldwide income and gains to amend his Tax Returns accordingly.
• Mr Perlman refused and HMRC issued Schedule 36 notices.
• Mr Perlman Appealed to the FTT on the basis that the information requested would only be 'reasonably required' to check his tax position if he was domiciled in the UK which had not been determined.
• He requested that the question of his domicile be decided as part of the appeal.

The FTT dismissed the appeal finding:

• The tribunal was satisfied that there was a rational connection between the enquiry and the information requested by the notice.
• The information notices were, therefore, ‘reasonably required’ to check Mr Perlman’s tax position.
• The determination of Mr Perlman’s domicile was beyond the jurisdiction of the appeal as:
  • The appeal was against the issue of a Schedule 36 notice and was limited to considering the reasonableness of the information request and its relevance to the appellant’s tax position.
  • A Schedule 36 notice is independent of the tax investigation and the appeal did not extend to the merits, or otherwise, of HMRC’s view that Mr Perlman had acquired a domicile of choice in the UK,
• The FTT went on to decide that, if it was wrong to consider that the question of Mr Perlman's domicile was outside its jurisdiction, then it should not exercise its discretion to determine the point as:
  • Case law stated that exercising discretion should be used sparingly.
  • Deciding the matter in this way would limit Mr Perlman’s route of appeal on the point to a judicial review, a higher hurdle than the route of appeal to the tribunals following the issue of a Closure notice by HMRC.

Useful guides on this topic

Schedule 36 Information Notices
What is a Schedule 36 Information Notice? When can HMRC issue one? What rights does the taxpayer have when an information notice is issued?

Non-domicile status, deemed domicile & tax
Who is non-UK domiciled? What does this mean for UK Income Tax, Capital Gains Tax and Inheritance Tax? What reliefs are available to non-doms?

Remittance basis (overseas income)
What is the remittance basis? Who can claim it and when? What are the advantages of claiming the remittance basis and how much is the remittance basis charge?

Closure notices
When does HMRC issue a Closure Notice? Can a taxpayer demand one? Are there appeal rights? 

How to appeal an HMRC decision
Disagree with a HMRC decision? How to appeal, what type of decision can you appeal and what are your different options when you disagree with HMRC? What are the key steps in making an appeal?

External links

Robert Perlman v HMRC [2021] TC08168