Boulting & Anor, R (On the Application Of) v Revenue And Customs

Judicial review is ordinarily a remedy of last resort. Where Parliament has provided a suitable statutory appeal, permission will generally be refused, particularly where the appeal lies to a specialist tax tribunal and can determine the substantive tax liability.

The court should consider the true substance of the dispute. A challenge presented in public-law terms should not proceed by judicial review where the statutory appeal can provide the practical remedy sought and can resolve the underlying issue more effectively, including through factual and expert evidence. The existence of public-law arguments does not by itself make judicial review appropriate.

The claimants sought permission to challenge HMRC’s decision to treat a statutory clearance as void and to assess Mr Boulting to income tax rather than capital gains tax on a company’s purchase of his shares.

HMRC contended that the clearance was void under section 1045(6) of the Corporation Tax Act 2010 because the particulars supplied did not fully and accurately disclose material facts concerning share valuation. Mr Boulting had also appealed the closure notice to the First-tier Tribunal (Tax Chamber). The central issue was whether that appeal was a suitable alternative remedy.

1. Permission refused. The court refused permission to bring judicial review, assuming for the purposes of the decision that the proposed grounds were arguable.
2. Judicial review is ordinarily a remedy of last resort. The court should respect the procedures Parliament has established for the usual class of dispute, avoid duplicating proceedings, and preserve judicial review for cases where intervention is genuinely required. This principle is particularly applicable in tax cases, where the statutory appeal regime is designed to determine liability by applying the law to the facts.
3. The court applied the guidance in R (oao Glencore Energy) v HMRC [2017] STC 1824, upheld on appeal in R (oao Glencore Energy) v HMRC [2017] EWCA Civ 1716. The court must identify the true substance of the dispute rather than allow public-law formulations to conceal a matter properly belonging to the statutory appeal process.
4. The substantial disparity between the parties’ share valuations might affect whether the purchase was wholly or mainly for the purpose of benefiting the company’s trade. That issue could require factual and expert evidence, making an appeal to the First-tier Tribunal more appropriate than judicial review.
5. The appeal could provide Mr Boulting with the remedy he sought: taxation in accordance with the clearance if the tribunal accepted the capital gains tax basis. The company had no separate fiscal consequence from the assessment and sought no additional remedy.
6. The court noted the principle stated in In re Preston [1985] 1 AC 835: where Parliament has provided tax appeal procedures, collateral judicial review will be permitted only very rarely, such as in exceptional cases involving a serious abuse of power. The claim was therefore refused on the basis that the appeal to the First-tier Tribunal was a suitable, potentially more suitable, alternative remedy.

Not stated in the judgment.