Section 315

HMRC agreed under a pre-2014 statutory regime to postpone the collection of disputed taxes until appeals against the related assessments had been determined. Nevertheless, HMRC based on a statutory discretion accorded by it under a revised statutory regime introduced in 2014, issued advance payment notices (APNs) to the claimants requiring immediate payment of the disputed tax. The claimants contended that this amounted to an unlawful abuse of power.

In light inter alia of no exceptionality having been shown beyond the mere fact of the postponement agreements, McCombe LJ found that there was no basis for reversing the High Cout’s findings that although HMRC’s approach in deciding to give the APNs ignored principles of good administration and constituted “conspicuous unfairness” (para. 62), the High Court was entitled to consider other factors and to conclude that there had been no abuse of power.

In this regard, after quoting (at para. 55) an earlier dictum that:

One aspect of the duty of fairness is that, in general, a decision- maker may not fetter his discretion. However, it is well established in public law that a decision- maker may formulate a policy to enable him to exercise a discretion consistently provided that it is not applied so rigidly that it precludes the proper exercise of discretion in each case.

McCombe LJ stated (at para. 56)

The simple rule is, as Arden LJ said, the internal policy must not preclude a proper exercise of the statutory discretion in each case.

After its successful appeal of a GST/HST assessment, Jayco sought to include, in the costs recoverable from the Crown, the $1.4 million paid by it to JP Morgan in order to obtain a letter of credit to secure the GST/HST it owed until the assessment was reversed. In rejecting this claim, and after noting that the Minister could have exercised her discretion under s. 315(3) not to require security or payment, D’Auray J stated (at paras 39-41 and 44)::

… On an appeal from an assessment, it is not the role of this Court to sit in review of the Minister’s decisions on how best to effect collection of, or obtain security for, unpaid GST/HST. This is what Jayco is asking the Court to do.

… In essence, Jayco is submitting that the Minister ought to have exercised her discretion differently and not taken any collection action on the GST/HST assessed. Had she done so, Jayco would not have had to obtain the letter of credit and pay interest on it.

… The Minister has the power to take collection actions against a person under the ETA once a person is assessed and unpaid amounts of tax remain. This Court does not have jurisdiction to review the Minister’s exercise of that power—that jurisdiction rests with the Federal Court. …

The Rules are clear that disbursements will only be awarded if they are essential to the conduct of the proceedings. … The interest was not paid by Jayco to establish that the Minister’s assessment was incorrect and therefore did not arise from the appeal filed before this Court.