Tax penalties and human rights: where are we now?

Human rights arguments can be a useful tool in challenging tax penalties, either on their own or to support technical grounds, but they are often an afterthought. Two articles within the European Convention on Human Rights (ECHR) which are relevant to tax are article 6 (the right to a fair trial) and article 1 of the First Protocol (A1P1, the entitlement to the peaceful enjoyment of one’s possessions). Deciding whether to pursue an article 6 argument against a penalty on the basis of HMRC delay depends on the delay being unreasonable between the ‘charge’ and the issuing of the penalty which prejudiced the taxpayer. An A1P1 argument involves consideration of whether the penalty regime is in the public interest and whether the penalty imposed is proportionate between the aim of the penalty regime and the requirements of the protection of the taxpayer’s rights.