Unsuccessful challenge to published avoidance scheme

The taxpayer companies engaged workers under arrangements which HMRC considered to constitute tax avoidance. HMRC therefore decided to use its powers under FA 2022 s 86 which allow the department to publish information (including documents) that it considers appropriate to inform taxpayers about the risk associated with a tax avoidance scheme and/or to protect the public revenue. The taxpayers issued a claim for judicial review against HMRC’s proposal to publish information and HMRC agreed not to publish until the determination of the judicial review.

The taxpayer mounted what the judge described as a ‘wholesale attack on s 86 based on EU law through the prism of the 2018 withdrawal act’. Specifically it argued that publication would constitute an unjust and disproportionate infringement of its right to the free movement of capital (the key director was based in Malta) and that publication would also impact on the company’s...