Tax tribunals objective should be simply put, Faculty argues
The new Scottish tax tribunals should be given the simple objective of deciding cases "fairly and justly", the Faculty of Advocates claimed today.
Responding to a Scottish Government consultation on draft rules for the tribunals being established under the Revenue Scotland and Tax Powers Act 2014, Faculty favours the adoption of the statutory overriding objective that currently applies to UK tax tribunals.
Scottish ministers propose a guiding principle of dealing with cases “accessibly, fairly, quickly and effectively”.
Welcoming the fact that the draft rules are based, for the most part, on UK tax tribunal rules which have been in operation for some years and appear to work satisfactorily, Faculty comments:
“In both the UK and draft Scottish rules, one next finds the same five points mentioned as examples of what is included in the overriding objective. It may therefore be that, in practice, there will be little, if any, significant difference between the ways in which the two overriding objectives are implemented, despite the obvious differences in their wording.
“However, we recommend that the overriding objective of the Scottish tribunals should… be to deal with cases ‘fairly and justly’. The words ‘fairly and justly’ are brief, but powerful. Overriding objectives should be readily understandable objectives, relevant and applicable to all cases before the Tribunal, being objectives which the Tribunal itself can take steps to further and which do not conflict with each other.
“The ‘fairly and justly’ overriding objective of the UK tribunals meets all of those tests, whereas the more complex overriding objective of the Scottish tribunals, as presently framed, meets none of them.”
On another aspect, mediation, Faculty hopes Scottish practice will prove more effective that that in the UK. Whereas UK rules impose an obligation, "not dissimilar to the draft Scottish rules", to seek to facilitate the use of alternative dispute resolution, Faculty states, "In our experience, however, that obligation is often ineffective in practice because the tribunal only becomes seriously engaged with cases at a relatively late stage, by which time the parties may well be too far down the track towards a tribunal hearing to be diverted towards mediation.
“It is to be hoped that the working practices of the Scottish tribunals will enable the obligation… to be discharged more effectively.”
Faculty further notes that it appears from the draft rules for the Upper Tax Tribunal for Scotland that an award of expenses to the successful party, which is the norm in the UK Upper Tribunal (Tax Chamber), would be the exception.
It responds: “We believe that it is more appropriate… to let expenses follow success (in the absence of unusual countervailing considerations). We therefore recommend that the draft rules about expenses should be amended to reflect that position.”