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Is sauce for the Goose good for the Gander?

I represented the Appellant in the interlocutory hearing in Greencyc v HMRC [2021] UKFTT 480 (TC) where Judge Aleksander refused permission for the Appellant to rely on an unpublished interlocutory decision, he said:

“what is sauce for the goose must also be sauce for the gander - if it is not proper for HMRC to cite an unpublished decision, fairness dictates that it is also improper for the appellant to cite an unpublished decision.”

However, in a recent decision Judge Ann Redstone in Andrew Lillicrap v HMRC [2023] UKFTT 72 (TC) took a different view because HMRC, as Respondents in every case, would have access to all unpublished decisions whereas the taxpayer and the Tribunal would not thus, if HMRC are allowed to rely on unpublished decisions then they are in a position to pick and choose a decision that best suits them, she said at [30] that:

"... I would allow a taxpayer to rely on an unpublished judgment as long as HMRC had had due notice, but I would not allow HMRC to do the same. In other words, the HMRC goose and the taxpayer gander are not in the same position. I accept, however, that other judges may take a different view."

I was instructed by Steve Simmonite of SKS (GB) Limited in Greencyc.


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