Restoration decisions: Arranging for a review: Role of the review officer
Under the Litigation and Settlement Strategy, it is essential that HMRC only pursues sensible cases with good prospects of success.
The purpose of the review is primarily to review the decision, after considering all the relevant facts or evidence, see ARTG6320. But they should consider current policy and whether the facts of the case are exceptional to the extent that we should depart from normal policy (but as with any other matter, it is possible that as a result of a review HMRC may change their policy or practice).
However, any departure from the normal policy and practice should be with the prior knowledge and approval of the relevant policy and technical teams.
The review officer must consider whether the case is one which HMRC would want to defend at tribunal. In particular the review officer should consider the following in light of the Litigation and Settlement Strategy
- whether the facts have been established, and whether there is disagreement as to the facts
has there been an appropriate fact-finding phase? Have all the relevant facts been considered in arriving at the HMRC decision? Can any disagreement as to the facts be resolved?
- the technical and legal merits of the case
is the case in line with HMRC guidance and policy? If appropriate has technical or legal advice been sought from HMRC experts? If advice has been sought does it take into account all the relevant facts and evidence?
in a few cases, subject to the principles of the Litigation and Settlement Strategy, it may not be an efficient or desirable use of resources to proceed with an appeal that will cost more than the sum in dispute.
- the likelihood of success
assuming that the case is technically and legally sound, is there sound evidence to support our position and view of the facts?
- wider implications
an appeal may raise unusual questions of law or general policy or in some other way have an effect on future decisions. In those cases it is especially important to check that the policy and technical experts have been consulted and to seek their view as to whether the case is appropriate for litigation.
In carrying out the review, the review officer has a ‘ringmaster’ role. For example they may need to seek and coordinate input from a number of different areas of the Department, such as the decision maker, Solicitor’s Office, technical or policy specialists. In doing so the review officer must bear in mind the 45 day time limit for completing the review, see ARTG6350 and ARTG6360.
Once the review officer has completed their review they must write to the customer and the decision maker to tell them the outcome of their review, see ARTG6390.