HMRC. Vicious But Fair? That’s Half Right.

More News of the Taxman. Clearly, Not Paid To Be Generous.

In earlier Blogs links here and here I ruminated about the apparent wish of the Government that we should all “do the right thing” and pay full tax without seeking any avoidance opportunity. This on the basis that such opportunity as there is to avoid tax, might not have been intended by Parliament.

A difficulty there, it seems to me, is that it is hard to know what tax rules were made on purpose and which by mistake.

Nevertheless, the Chancellor wants the taxpayer to play nicely; if ever we think that the present tax rules seem a bit generous, let’s pay the full whack in case it’s a mistake.

And for its part, HMRC is apparently quite downhearted when it finds that it has taken tax which was not due – as reported in the case of Jim Dooley, reportedly owed a refund of £60,000.00 – “It might appear unfair to deny a customer [yes, you and I are the Customers of the Revenue, not that we are allowed to shop elsewhere] the opportunity to recover tax that may not have been due”

But in that case the tax was paid too many years before the claim for refund and so the Taxman had to obey the law and refuse to help. Presumably, a law which Parliament did intend.

The implication of the Taxman’s statement about unfairness could be understood to be that, had the law not prevented it, then a full refund would have instantly been provided wrapped in festive gift-wrap and possibly with a cake.

So we might be forgiven if we suppose that – in a case where the HMRC does have a discretion – then it also will be quick to “Do the right thing”

Some will be disappointed to read of the case of John Clark -V- HMRC. Here the taxman’s opinion of what might be the “right thing” is shown to be less than liberal.

The case report is here in full. In brief, a person with learning difficulties – the mental age of a primary school child, also unable to communicate in writing due to dyslexia, has worked three days a week self-employed as a decorator over two years or so. He looked after his daughter alone. He suffered from depression. In 2006 his house was burnt down. His wife has died.

It is the sort of list of hardships which Charles Dickens might have rejected as too obvious for fiction.

The tax demanded was a sum which the HMRC had made up, by reference to the income of other self-employed decorators. It is not known whether those other decorators were suffering learning disabilities or the other slings and arrows of outrageous fortune afflicting Mr Clark. There is no evidence that his earnings justified such taxation. The judge found at the hearing that no tax had been due. The Revenues made-up figure was £17,779.94.

The Tax Tribunal described the actions of the HMRC as “unreasonable and unconscionable.”

Of course, the taxman is not in place to be liberal, and the Country has not voted for the Liberals.

It is the job of the taxman to collect every penny of tax that is properly due and no-one should doubt that hospitals and schools and benefits have to be paid for.

So perhaps the element of this case that should cause the Revenue to shed a collective tear is not its apparent heartlessness so much as its wilful stupidity coupled with a degree of incompetence. To say nothing of wasting, rather than collecting money.

If the Country is to pay for its Army its doctors its teachers and all of the other colossal burdens on the National budget, perhaps its tax collectors should concentrate on better targets than mentally frail single parents with no money.

Whilst HMRC is unlikely to say so in any publicity materials [“Tax does not have to be taxing” – anyone?], it may well agree this case was not its finest hour.

George Harrison had his own view – link here

A brief reminder – If you have or need a document for use abroad, please do get in touch. As ever, Louise and I are at notary@atkinsonnotary.com and louise@atkinsonnotary.com or phone us on 0113 816 0116

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Signing By A Company? How Not To Get It Wrong!

Company Documents – How To Stop Getting It Wrong!

In earlier Blogs I have explained how the Law of England and Wales requires that Company documents must be signed in order to be binding on the Company.

Here is one of them link here

The rules about this are to be found in the Companies Act of 2006. When this Act was created, it was then the longest Act of Parliament there had ever been. As Wikipedia marvels, the Index alone is over 59 pages long.

No-one should be surprised I suspect, that this record has already been broken!

So the rules are clear – proper execution requires one of the following
• Company Seal Witnessed
• Two Officers signing
• One Director signs in the presence of an adult witness who then countersigns as Witness

My [incorrect] understanding had been that these requirements related only to a formal Deed, and that documents of slighter substance, such as contracts or notices, could be signed more informally and yet bind the Company.

WRONG!

In mitigation of this admittedly appalling ignorance on my part, I have met very few lawyers and no Company Directors at all, who properly understand the situation.

My eyes have been opened, at a Seminar I attended last week addressed by Iain Rogers, who is a Scrivener Notary and Senior Visiting Fellow at UCL.

Mr Rogers said – THESE RULES APPLY TO ANY SITUATION WHERE A COMPANY IS REQUIRED TO SIGN A DOCUMENT.

The authority for this statement is the case of Hilmi & Associates -v- 20 Pembridge Villas Freehold Limited – Link here

The facts of the case related to the service by a Company of the necessary Notice which is a preliminary to the negotiation of freehold enfranchisement of its leasehold property – the Notice had been signed by a Company Director. No witness had seen him sign it or had countersigned it.

How many Company Directors would consider that inadequate? I suspect that many Companies would consider that signing such a notice could be delegated to the Company Secretary, or to an employee in charge of property matters.

The Court of Appeal [and by the time any case gets to the Court of Appeal, many thousands of pounds have been wasted] found that the Notice had not been executed by the Company as required by the Law.

So in the case of Documents for use in England which have to be signed by your Company – do make a note, and make sure that everyone in your Company is told – all legal papers, notices, contracts, anything to be signed on paper relating to the legal rights and obligations of the Company, can only safely be certain to comply with the law, if it is treated as formally as if it were a Deed.

I repeat, proper execution, to be safe, requires one of
• Company Seal Witnessed
• Two Officers signing
• One Directors signs in the presence of an adult witness who then countersigns as Witness

Who knew!

Of course, any paper signed by a Director in the presence of a witnessing Notary will comply.

This blog of course is still skating the surface of many of the issues affecting Company executions, and does not address issues of good faith, declarations of personal interest or conflicts with Company constitutions. Scope for some future Blogs there.

This was a bit of a dry subject to link with a song, how about this? Link here

For all of your Notarial Certificates, with Clarity and for use all around the World, do get in touch. As ever, it’s AtkinsonNotary Limited at E7 Joseph’s Well Leeds, 0113 8160116 and notary@atkinsonnotary.com and louise@atkinsonnotary.com We shall be very pleased to see you.

Doing it Right. Might Save Some Brass!

Doing It Right. Better Than “Good Enough”? Cheaper, Certainly.

My working day always includes the preparation of Notarial Certificates. A well drafted Certificate should be as concise as is consistent with absolute clarity of meaning.

That being the case, I find that one result of my daily quest to write statements which are clear and not ambiguous, is personally to become hyper-sensitively alert to everyday ambiguities in ordinary speech.

Louise has learned that if she is to ask me “Would you like a tea or a coffee?” she will get an answer “Yes thanks”. It is very much to the credit of her lovely nature that even so, she goes on to ask me “OK. Please tell me then, Which would you like?”

A cartoon in yesterday’s paper showed a man in a computer shop asking the assistant “How long to mend this computer” and being answered “Half an hour”

Half an hour later he was back asking “Is it mended?”

No, Why would it be? “You only asked how long it would take to mend it”.

New usages become accepted almost overnight: it becomes hard to remember that in the real 1950s, as opposed to the telly version, no-one would ask a waiter “Can I get a Coffee?” [Durr – the waiter gets it, if you ask to have it].

But in 2015 only a Notary would assume that the customer is actually asking for a go on the espresso machine. Even though the dictionary would support me.

And if it is cool [it probably was in 1987, I am very old] to say Bad when you mean Good, why not Up when you mean Down. Perhaps an Air Traffic Controller could explain.

Apparently, “I could care less” means “I couldn’t care less”. “I am waiting on the train” means neither “I am bring the train a cup of tea and a biscuit” nor “For some reason the train I am sitting in is not moving”. Oh No. It means “I am waiting for a train”.

O Tempora! O Mores!

To my calcified way of thinking, there is sloppy thinking, and there is precision. With sloppy thinking, who knows what can go wrong? With precision, you might make the other side raise their metaphorical eyebrow and call you a pedant, but you are unlikely to waste time in arguing later about what your meaning actually was.

Anyway, thought for today, I have found some case law to support those Non-Notaries among you who consider “nearly-right” to be “good-enough”.

In the case of Williams -v- Redcard, a written Contract was drawn between the parties. On the Plaintiff side [the Sellers in the Contract] there were human Directors of a Limited Company in respect of their personal leasehold interests in the Contract Property, and also the Company of which they were the Directors, in respect of the Company’s freehold interest in it.

At the end of the last paragraph of the Contract, the two Directors signed it.

The other side refused to honour the Contract, and in their defence stated that the document did not show that all of the Sellers had signed. Since each human had signed only once, the Buyers argued that therefore either the human Directors had not signed it or the Company had not signed it, because each Director should have signed it twice. That is to say, signed it once each wearing their “human” hats, and then also once each in respect of the Company’s execution.

Yes of course, the only certain wording would have been to do exactly that – Do it like a Notary would – add an Attestation and Testimonium clause for each human person, and a third for the Company.

To cut this Long Story short – and if you want to read the long story link here is a transcript of the final appeal judgement – the Judge told the Buyers – in my paraphrase – “not to be so Notarial”.

OK, a result for imprecision, the “It doesn’t matter what you’ve written, we can see what you meant” school of drafting.

Two points though.

First, this was a Contract, and I suspect the result would have been otherwise if the document in question had been, or had needed to have been, a Deed.

And second, the decision of the Court took two years to obtain, took four hearings in the High Court and then one final Hearing before the Court of Appeal. Whichever side is paying for all that won’t get much change from their sixpence, to say nothing of the time, cost and worry of being involved in contentious litigation.

So my advice, if anyone should want it, is – Slow down. Do it Properly – It’s the work of two minutes to finish off a Contract properly and avoid two years’ worth of fighting, worry and delay.

As the Judge said – Sometimes it may just be worth stating the obvious.

Assuming that is, that you can actually recognise the “obvious” when it is hidden amongst all of today’s linguistic white noise.

Cue for a Song? It Is Obvious

For all of your Notarial Certificates, with Clarity and for use all around the World, do get in touch. As ever, it’s AtkinsonNotary Limited at E7 Joseph’s Well Leeds, 0113 8160116 and notary@atkinsonnotary.com and louise@atkinsonnotary.com We shall be very pleased to see you.

The Truth Again. Always a Bit of a Worry.

More fuss about the meaning of words. What does “Truth” mean? [What does “Mean” mean!]

A Notary, when it comes to basics, is an “Expert Witness” as to matters of fact.

The role of an Expert Witness in most Courts of the World differs from that of the ordinary person who is called as a Witness.

The difference is that when the ordinary person [OP] sees a car crashing on a rainy road, he can say to the Court “It was raining. I saw the car crash. The car seemed to me to be moving faster than other cars. No other car crashed”. The Court will then decide whether or not it believes that evidence.

He cannot say “The driver was reckless in my opinion, he was doing at least 100 miles an hour, he was driving without a thought for the safety of anyone else”. Because those are opinions, not necessarily facts. The Court wants to hear the facts. It will then reach its own opinion.

On the other hand, an Accident Investigation Expert Witness [EW] may not have seen the crash. But he can inspect the wreckage, measure the skid marks and the treads in the tyres and whether the brakes had been tampered with. From this evidence and his expert knowledge, he can give his opinion to the Court as to the speed of the car before the collision. He is an expert, his opinion will help the Court and it is based upon knowledge and training beyond the expertise of the Court itself.

The EW needs to show the Court, why s/he should be considered to be an Expert. A Degree in Automotive Engineering and an MSc. in Safety and Accident Investigation for example. Actual Qualifications.

Similarly, a Notary Public has achieved that special qualification by examination and experience. Usually in England, some seven years’ experience and examinations which include a Law Degree and becoming a Solicitor before the final Notary exams.

So what is an Expert Witness of facts? As opposed to an OP stating a fact. Well I can say “It was raining”. And the Court will believe me! Well it will unless you can prove I am lying.

Here is the English Rule – link here. Other Countries treat Notaries in the same way.

32.20 A notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved.

I think that anyone with a special status, has a special responsibility. If the Courts grant me the courtesy of believing what I say, I must be sure that I only speak or write the truth.

Last week I wrote about the deviations which increasingly occur, between the meaning of a document – the words of which it is composed – and the meaning which is actually to be ascribed to it.

It seems simple, surely. Just tell the truth. But when words don’t mean what they used to?

The example last week, of a client asked to swear that photographs [which were actually lying on a desk in Florida] were physically attached to the Affidavit she was signing in Leeds.

I have another one this week. Presumably if bad luck comes in threes, I will have another next week also. What is going on?!

This week a client is completing a tender for commercial work in Portugal. Part of the application form requires him to make, and me to notarise, a statement that his company if successful in its bid, will sign a contract “in the terms of the specimen attached”.

The problem is that the bid has to be lodged this week or it will not be considered, yet the final contract offer has not been fully written. So it cannot be attached to the bid. And even if it did exist, it will be many hundreds of pages long and is not intended ever to be printed out, but to exist as a digital document only.

Seems simple, just change the bid declaration wording to say that the Company will sign a contract “in the terms finally negotiated in due course” or some such vague wording.

No, we can’t do that, the terms of the bid declaration are set in stone, they are part of the Portuguese standard documentation for international tendering, as they have been probably since before computers were ever used in Offices.

So in order to compete for the tender, the Client has to sign a declaration [which has a prison sentence as punishment for any known lies contained in it] which he knows to be false, and which the persons who will receive it in due will know to be untrue. They expect it to be untrue, they require it to be untrue. If there had been a final contract now agreed, and if its thousand or so pages were printed out and actually attached to the declaration, they would be very cross!

So where are we now? In order to compete for the bid, the Client and I are required to complete a Declaration of Truth which contains a lie. Everyone in the procedure including the Portuguese Lawyers knows this and explains it by saying “It is a standard form. It describes a procedure which is outdated. We do it differently now. We can’t change the form because needs an Act of Portuguese Government and that’s not going to happen. So we all agree just to ascribe to the words, a meaning which is contrary to the meaning of those words in the dictionary”.

Where does that leave the Notary, who has to tell something called “the Truth”? Where, for that matter, does it leave the “Truth”?

As usual Bob Dylan knows. “A noble truth is a sacred dream” Link here

Ok that’s enough metaphysics for one day.

If you have a document that tells the Truth, for use abroad, please do get in touch. As ever, Louise and I are at notary@atkinsonnotary.com  and louise@atkinsonnotary.com and phone us on 0113 816 0116