In The Queen (oao I Clamp and another) v HMRC [2021] EWHC 2360 (Admin) the High Court declined to grant judicial review of a decision by HMRC to refuse to give a taxpayer assurance that if he ‘rescinded’ repayment of loans to an employee benefit trust (EBT) it would not tax him under the disguised remuneration provisions. The court held that although in principle such a decision would not constitute a forward tax agreement of the type held to be outside HRMC’s powers in the Al Fayed ([2004] STC 1703) case on these particular facts HMRC was right not to give the taxpayer that assurance.
The taxpayer had taken out loans totaling some £1.9m from an EBT at various dates between 2005 and 2009. Under the loan charge as originally enacted in F(No.2)A 2017 Sch 11 a charge to income tax would have arisen had...
