Referring to previous postings, I have seen a tax credit appeal bundle this week. I haven't read it yet (it's a colleague's case) but it concerns cohabitation and the IR appear to be using the same criteria to define cohabitation as the DWP use for other benefits.
I also have an ongoing tax credit cohabitation appeal. The IR here in Liverpool have been asking to meet advisers for a 'discussion' before they produce appeal papers. The purpose of this is not entirely clear, but the IR officials I met for my appeal said they were looking for more information to enable them to carry out a review before the case needed to go to an appeal hearing. This might have been useful, but they insisted that the burden of proof was on the client to show that she qualifies for tax credit. This might apply to claims, but I took issue with them as to whether it applies to appeals.
Does anybody know whether it does or not?
The IR officials I met also insisted that tax credits "are not a benefit" and are not subject to the same caselaw (ie, Commissioners decisions) as other benefits. Does anybody have any ideas or information on this?

To the question, are Tax Credits Benefits I refer you to the "Wikeley and Williams" commentary in Volume IV at para 1.319 and 1.320. "CTC is a means tested social security benefit presented as a Tax Credit; WTC is not a social security benefit.

The caselaw to use when arguing a case is to a great extent dependent on the case. If it is an issue never before dealt with in Tax Law but has been considered within Social Security Law at the very least the case should be persuasive. In revenue type issues, e.g. the imposition of penalties, it will be tax case decisions which will be relevant.(volume iv 1.415).

At the moment appeals go to Appeal Tribunals and then on to the Commissioners, ultimately it will be the Commissioners and the courts who decide what is relevant caselaw and what isn't, not Revenue officials.

As to pre hearing meetings with the Revenue this seems to be a long standing Revenue practice being imported into Tax Credits

I'd agree that pre-hearing discussions and the like are very much part of tax appeals culture. One reason why we should be vigilant in trying to prevent TC appeals ever switching to the General Commissioners of Income Tax is that this sort of thing goes on the whole time before, during and after their hearings.

I've observed a number of GC hearings as a former member of the Council on Tribunals, and it is common practice for IR presenting officers to remain in the hearing room, often chatting to the panel members, while appellants come in and out. Often, to a large extent, IR POs almost run the hearing. There is often a totally relaxed attitude about the judicial nature of the proceedings, frequent failure to appreciate the need to adhere to due process, and, yes, those "meetings" - quite often to see if a deal of some kind can be done.

I think that if advisers are offered pre-hearing meetings, this should be resisted as it can undermine the judicial process; if "deals" are proposed we can be sure it won't be our clients who benefit.

-John Eames

The wordings are very similar for cohabitation:

Section 3 of the Tax Credit Act 2002. In paragraph 6 of that section it is written:

“(6) In this Part “unmarried couple” means a man and a woman who are not a married couple but are living together as husband and wife.”

Section 137 of the Social Secuirty Contributions and Benefits Act 1992, which in paragraph 1 states:

‘“unmarried couple” means a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.’ (for which see reg 16 of the IS regs

There is a big difference in definitions for married couples which is in accord with tax legislation (see subsection 5 of Section 3 of the TCA).

I had a case where the client frustratingly didn't come to an appoiintment. the local IR office's Tax Credit Compliance centre or whatever they call themselves initially did a decision largely linking two people on financial grounds only, but the manager then accepted social security arguments and said he would potentially revise the decision with further information. Got bogged down slightly on asking for / using details about sexual relationships (he went off on a human rights tangent which I think is a four star red herring, but you know they're never going to ask the question anyway), but then it all blew away when the client declined to pursue it.

I don't see how the burden of proof can be on the claimant after a claim has been accepted. See Mesher 2003 pp 26-27 quoting CIS 317/1994. This is rather naughty really but so often happens - you have to prove they're not together when the IR has to prove that they are. And in the end it's easier to do those things - change electoral roll, get names off rent books and CB books etc - if possible.

Thanks for the replies. I might have partly answered my own question: there's a recent articvle in the Welfasre Rights Bulletin about burden of proof which says that it's the practice in Enlish common law for the burden of proof to be on the party who initiates the action. In benefit appeals, this is the decision maker. I'll put this to the IR and ask if they can point to any statute or regulation relevant to tax credits that contradicts it.

You are right. There is a latin juridical term (which for the moment escapes me but maybe someone else knows it) which states that 'he who asserts must prove the truth of that assertion'.

Regards
Paul

"ei incumbit probatio qui affirmat, non ei qui negat"

Everyone in Salford knows Latin.

Well done that man! In nomine patris, chatanooga choo-choo est!