Alexander Langsam, R (on the application of) v The Commissioners for HMRC

This is the claimant’s application for permission for judicial review. It is a renewed application as permission was refused on the papers by Sir Ross Cranston on 10 July 2023. The hearing was originally listed for April 2024 but was put back, with the agreement of the parties, and listed for one and a half hours before me today.

The judicial review claim form was issued on 10 June 2022 and it explains that the date of the decision being challenged is 11 March 2022. In section 3.1 of the claim form, the details of the decision, which the claimant seeks to have judicially reviewed, are explained in these terms:

“HMRC made a DOM1 ruling on 2 September 1999 (‘the 1999 domicile ruling’) that the Claimant was non-UK domiciled at that time. HMRC decided to resile from the 1999 domicile ruling in a ‘view of the matter’ letter, dated 11 March 2022. That decision is in breach of the Claimant’s legitimate expectation that the 1999 domicile ruling will be applied consistently to matters predating the date of 1999 domicile ruling. It is, accordingly, unlawful.

Further, and alternatively, HMRC’s decision to pursue information relating to the Claimant’s late mother on 11 March ‘view of the matter’ letter discloses an error of law and is unlawful”.

That is the description of the details of the decision of which judicial review is sought.

In relation to the two letters referred to in that description, the letter dated 2 September 1999 is a letter from Valerie Solely, HM Inspector of Taxes, written to Messrs Peter Lobbenberg & Co, who were the claimant’s accountants, as I understand it. The letter says, “Dear Sirs”, it has the heading “A LANGSAM” and then says this:

“I refer to your letter of 15 July and can confirm that your client is being treated as not domiciled within the United Kingdom at present.

Yours faithfully

Valerie Solely”

The letter which is the subject of the judicial review challenge is dated 11 March 2022. There is a covering letter which is from a Mr Mark Ropka to a Mr O’Donnell at Deloitte LLP, who at that stage was the claimant’s accountant. That letter says this:

“Please find enclosed a copy of a View of the Matter letter issued to your above-named client in respect of the ongoing appeal against the Sch 36 notice issued on 24 June 2021”.

It then sets out about a new address which I do not need to read.

The letter of 11 March 2022 is an extensive letter, which runs to some 27 pages. It explains at the beginning that the author of the letter, Mr Ropka, is writing further to an appeal, which was submitted in July 2021, and the nature of that appeal which was against a notice issued under schedule 36 of the Finance Act 1998 and information notice on 24 June 2021.

It then explains that, whilst details provided by Deloitte address some of the items in the schedule and in the information notice, others remain outstanding. The letter explains that agreement has not been reached on these outstanding items and that Mr Ropka believes they are still required for the purposes of checking the claimant’s tax returns which are under enquiry. It is in that context that Mr Ropka explained that he is now notifying the claimant of HMRC’s view of the matter in question. The letter then sets out the nature of the grounds of appeal against the information notice and then identifies that Mr Ropka thinks it would be helpful to have a meeting to discuss matters; a suggestion which had not at that stage been taken up.

The letter then goes on, under the heading “HMRC’s View of the Matter - General”, to identify the information which the Revenue maintained was reasonably required and the reasons for that. That sets out matters in relation to a 1998/1999 enquiry. It explains that the Revenue considered that they are entitled to query the claimant’s domicile status in law and, to do so, it is necessary to consider his domicile of origin, whether he acquired a different domicile of dependence prior to reaching the age of majority and whether he acquired a different domicile of choice after this point. It goes on to deal with domicile of origin, domicile of dependence and domicile of choice, the meaning of possession or power and “old” documents.

Then, under the heading, “HMRC’s view of the Matter - Specific Items”, the letter continues with a detailed schedule, under a number of different headings, which identifies the item, the reason why the Revenue say it is reasonably required and whether that has been complied with. The first heading is “Domicile of Origin/Dependence”, “Documents”, “Personal and Family life”, “Friends”, “Citizenship” and so on. This is a very extensive and long schedule.

Then, on pp.26 and 27 of the letter, Mr Ropka explains what the claimant can do if he disagreed with his decision and the options which are available to him. That explains that the decision can be reviewed by an HMRC officer not previously involved in the matter or that the claimant could appeal to an independent tribunal and that that had to be done within 30 days. At the end of the letter, Mr Ropka explains how an appeal should be brought and so on and so forth.

I am told that the claimant did appeal against the decision of 11 March 2022 originally. However, in due course that appeal was originally stayed but then, I understand, not pursued any further. I am also told by Mr Stone KC, Counsel for His Majesty’s Revenue & Customs, that there are, in fact, no outstanding enquiries which exist in relation to the letter of 11 March. All issues identified in that letter have now been resolved.

The position in relation to an application for permission to apply for judicial review is simply this. The judge will refuse permission to apply for judicial review unless satisfied that there is an arguable ground for judicial review which has a realistic prospect of success. It is that test that I have to apply in considering this renewed application before me.

The principal ground of challenge relates to legitimate expectation on the part of the claimant. That is explained, in essence, at para.79 of the grounds of challenge which have been advanced by the claimant. The claimant maintains that there has been a breach of legitimate expectation. Paragraph 79 says this:

“As explained above, a ruling that the Claimant was non-UK domiciled as at 2 September 1999 shows that HMRC accepted that (i) the Claimant had a non-UK domicile of origin and (ii) that he retained that non-UK domicile during his minority (he turned 21 years old on 10 June 1959) and (iii) held that non-domicile status for 40 years thereafter. This clear representation founded a legitimate expectation that HMRC would not seek to resile from that view and re-open enquiries into the Claimant's domicile of origin, domicile of dependence or his domicile of choice as at the date of the 1999 domicile ruling”.

I should say there, in quoting from that passage from the grounds of challenge, the reference to the 1999 domicile ruling is the characterisation or label that the claimant in his judicial review claim has put on the letter dated 2 September 1999 and throughout the legal documentation, skeleton arguments and, indeed, in Miss Nathan’s submissions, she has throughout sought to maintain that document as a ruling.

However, before I get to the ground of judicial review, namely, breach of legitimate expectation, it is necessary to remind oneself that judicial review is a remedy of last resort and a discretionary remedy. In that context, it is relevant to consider whether the relief sought is academic or whether other remedies are available.

This claim is hopeless for a number of reasons. First of all, it is a challenge to the letter dated 11 March 2022. There is nothing outstanding in relation to that letter at all and the appeal issued originally against that letter was originally stayed and then not pursued, as the Revenue are not pursuing any further enquiries in respect of it. There is no decision in that letter of 11 March 2022 which is outstanding or open to challenge. Those facts alone make this claim entirely academic.

Second, any challenge to that letter of 11 March 2022, as set out in the letter itself, is to be pursued before the First-tier Tax Tribunal. That, of course, was an option originally pursued by the claimant. There is a clear statutory framework providing for a challenge to be made and, in those circumstances, this is not a situation where there is any room for judicial review.

Third, turning to the ground of judicial review, if I am wrong about the first two points, the suggestion that the letter of 2 September 1999 gave rise to a legitimate expectation that the claimant would be regarded as being treated by the Revenue as not domiciled in the UK thereafter is fanciful. That is not what the letter says. The letter is a one-line letter which, on the basis of the documents that Miss Nathan has shown me, I accept was the consequence of a process within the Revenue in relation to enquiries they made in 1999, but the letter simply says this:

“I refer to your letter of 15 July and can confirm that your client is being treated as not domiciled within the United Kingdom at present”.

It makes it clear that the Revenue is treating the claimant as not domiciled within the United Kingdom at present. That was the position on 2 September 1999. That is not any representation that that was determining the claimant’s domicile at any future point or at any earlier point. It does not carry the meaning which the claimant maintains in the statement of grounds of challenge, nor could it be interpreted in any such way.

In these circumstances, I am quite satisfied that the letter of 2 September 1999 could not give rise to any legitimate expectation, on the basis as characterised or maintained by the claimant, and any contention that that is possible is, in my view, misconceived.

Before today’s hearing, I considered with care the numerous papers which were placed before me, together with the detailed skeleton arguments prepared by counsel, for which I am grateful. There is no need for me to identify in any further detail the reasons why this claim is hopeless. The application for permission to apply for judicial review is refused and, to the extent it is necessary to do so, I certify this renewed application as totally without merit.