In Epaminondas Embiricos v HMRC [2022] EWCA Civ 3, the Court of Appeal (CoA), adjudged the taxpayer was prevented from forcing HMRC to issue a closure notice covering only his domicile status, against which he could appeal until the underlying tax at stake could be quantified.

  • HMRC enquired into Mr Embiricos self-assessment claims for 2014/2015 and 2015/2016 that he was non-UK Domiciled and entitled to the Remittance Basis of taxation.
  • Concluding that he was domiciled in the UK, HMRC issued an Information Notice in order to obtain the exact details of his worldwide income.
  • Mr Embiricos sought to avoid disclosure of his income by countering the notice and applying to the First Tier Tribunal (FTT) to force HMRC to issue a Partial Closure Notice (PCN). This would then allow an appeal by the taxpayer against the UK domicile decision.
  • HMRC considered that they could not issue a PCN until they had quantified the amount of tax that would be due if the remittance basis was denied. 
  • Following the application, the FTT held that the PCN legislation did not require HMRC to quantify the amount of tax due and a PCN should be issued accordingly.

HMRC appealed to the Upper Tribunal on the basis that the FTT had made an error of law.

The UT allowed HMRC’s appeal considering that a PCN must quantify the tax due as:

  • The practical effect of the FTT’s decision was that HMRC would be forced to issue a PCN, but unable to obtain the information they assert to be necessary to quantify the tax at stake.
  • Multiple PCNs could then be demanded and appealed and this would hold up the enquiry process. This was not what parliament intended.
  • The FTT had taken the exact opposite view to the FTT decision in a later partial closure notice case,(see Executors of Mrs R W Levy v HMRC [2019] TC07233). That case contained a detailed review of the PCN legislative background.
  • Also, the Court of Appeal in the earlier case of R (oao William Archer) v HMRC [2017] EWHC 296 had confirmed that closure notices which fail to state amounts and do not contain amendments to returns are defective.

Mr Embiricos appealed to the Court of Appeal who dismissed his case finding that:

  • An enquiry is to determine whether amendments are required to make good an insufficiency of tax and ensure the correctness of the tax calculations.
  • An enquiry or aspect of an enquiry can be brought to an end by a Full or Partial Closure Notice (FCN and PCN) which operate in the same way.
  • In order to meet the qualifying conditions a PCN can only be issued by HMRC if they assess the increased tax due as a result of the discrepancy.

Comment

In this case, the taxpayer had attempted to avoid, or at least delay providing HMRC with information about his non-UK income and gains by trying to force HMRC to issue a PCN against which he could appeal on the issue of his domicile status.

That the case has reached the CoA means that he has achieved that thus far, but now the options appear to have run out.

Useful guides on this topic

Domicile and the remittance basis: At a glance
This is a freeview 'At a glance' guide to Domicile and the Remittance basis

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?

Sch 36 information Notices: At a glance
This is a freeview 'At a glance' guide to Schedule 36 Information Notices.

Sch 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?

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?

Partial closure notice must specify tax liability
In HMRC v Epaminodas Embiricos [2020] UKUT 0370, the Upper Tribunal (UT) confirmed that HMRC cannot issue a partial closure notice which does not quantify the amount of tax due.

External links

Epaminondas Embiricos v HMRC [2022] EWCA Civ 3


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