Latest letter of December 2nd 2009 to HMRC LONDON

To go to the start of this blog click here

This is a slightly abridged version of the original - informants and copies not disclosed. (n.b. - when first published here, this item carried, by accident, an inappropriate date of 2012 - our apologies!)

To:-
Mr. Richard Thomas,
Tax Treaty Team, 100, Parliament Street, London, SW1A 2BQ
December 2nd 2009

Dear Mr. Thomas,

I wrote to you on July 20th a detailed letter and you courteously acknowledged that letter on the 4th August, saying that I would receive a fuller reply in due course. I still await that reply.

The letter of July 20th has a background essentially of the old Convention (DTC) (UK/France) then and now in part at least, still in force. It also refers to the new DTC of 2008.

Nothing materially has changed but I have been pursuing the case.

You must be aware that I have presented a Petition before the EU Committee on Petitions, who have acknowledged my petition and I await further news in that regard. The details of that petition can be read on my blogsite. I pray that when you do so, you take cognisance of the situation, mentioned in the petition, where if all income were taxed in France I could derive benefits from the tax rebates on employment of a home help and contributions to a French Charity to support the education of a boy in Cambodia. Because of the interpretation of the DTC these rebates are denied to me, since the income tax is paid to the UK!.

For all these reasons my total tax bill is somewhere about 1,000 euros higher than it would be for a Frenchman in the same circumstances.

In the meanwhile....

I have been in correspondence with an international tax specialist with regard to the French interpretation of the taxation procedures in the proposed 2008 Convention.

The Articles of the New Double Taxation Convention mentioned above are in spirit identical to the same Articles of the previous Convention (1968 No. 1869) The outcome is little different from that which I have previously stated. Nevertheless I am informed that the French are likely under DTC 2008 to calculate the tax due in a slightly different manner. I suspect that the situation thereby actually worsens for the British Government Pensioner.

[Calculation on income which includes UK Government Pensions].

Gov pensions = A, UK Tax = B

Any French income (or other foreign source income which is taxable in France) = C

French tax is calculated on A+C = D

French tax attributable to A = (A / (A+C)) x D = E

French tax payable is D minus E. [note that it is the attributable tax which is deducted in the calculation, not the actual tax paid! ]

Clearly and it is irrefutable logic - if B minus E is greater than zero ( UK tax less the French attributable tax) then the British National tax payer pays more tax overall than if he was a French National.

Further and again the logic is irrefutable; if a French National had EXACTLY the same career history as myself and therefore the same income and sources of income - then he would pay less tax than myself.

This situation infringes ARTICLE 25 (paragraph 1) on non-discrimination which I repeat here:

Individuals who are nationals of a Contracting State shall not be subjected to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with regard to residence, are or may be subjected.

The case is absolutely clear.

Now again I repeat to you Article 26. 1.

Where a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this convention, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the State of which he is resident, OR IF HIS CASE COMES UNDER PARAGRAPH 1 OF ARTICLE 25, TO THAT OF THE CONTRACTING STATE OF WHICH HE IS A NATIONAL.

I have written three times (third time by recorded delivery) to M. Comolet-Tirman [your counterpart] in Paris and have had no reply to any of them. This is also mentioned in my petition to the EU as is my correspondence to yourself.

You are the competent authority of which I am a national.

I have in my EU petition proposed two alternative solutions.

1. To remove in France all calculation relating to the British Government pensions taxable in the UK under OECD recommendations in the French tax calculations - as is the case in Spain and probably other EU countries.

or

2. To remove all necessity to tax the Government pensions of British residents in France in the UK, thus causing them to be taxable in France.

I repeat to you, Mr. Thomas, that it is the bounden responsibility under International Law for the British Government to uphold the interests of me, a British Citizen, and to intervene with France to correct this unfairness and irregularity. I demand, with the right of a British Citizen, that action is taken.

I give you official notice in this mail of my contention as required under Article 26.1 of the convention.

Copies of this mail to;- not disclosed here

Brian Cave

Circulated Message from Roger Gale M.P. on DLA payments

This message from Roger Gale MP has been sent to all MPs with constituents concerned about the non payment of Disability Living Allowance.

Exportable Benefits - update
As a colleague with a constituent interest in the issue of exportable benefits I felt that I should circulate the present position.

Infringement proceedings against the UK Government for breach of the ECJ ruling were issued at the beginning of October.

The Commission does not accept the "26/52" ruling in relation to qualification.

I still await the Prime Minister’s promised written answer to my oral PQ and subsequent letter.

The government has declined, on grounds of confidentiality, to publish its response to the EU.

Some 2000 (we believe) former elderly and disabled former UK residents and taxpayers are awaiting payment of the benefits due to them.

It would appear that appeal hearings, long-delayed, have now been put on hold pending (1) a resolution of the infringement proceedings and (2) the subsequent hearing of a basket of test cases.

All of which is not very satisfactory!

Yours ever

Roger Gale, MP
North Thanet

Update regarding exportable benefits from the UK/EU Disability & Carers Group.

To go to the start of the PensionersDebout blog click here. 


This 'posting' is now an archive.  It concerns the case of John Hamilton who is disabled.  Following the pressure brought to Government by his wife and various other groups including the Spanish Association of expatriates and backed by EU law the situation has changed and John Hamilton now has his benefit because of his disability.  So there is some progress.

Although some progress appears to have been made in the case of exportable benefits, insomuch that a handful of claimants have received appeal submissions from the DWP, hundreds more are still being subjected to delays and procrastination from the Exportability Team, Blackpool. Those claimants pursuing their allowances via the appeal process, having received rejection letters for reinstatement, are still being confronted with the “complex issues” argument as to why their cases have not been sent to the Tribunals Service (TS). A quoted 350 cases (DWP statistic) are currently waiting to be heard at appeal. The majority of these claimants have had their claim refused on the basis of the “26/52 week rule” (a.k.a. the modified past presence test) and “failure to appeal” at the original time of withdrawal of allowance.

In mid-August, claimant and campaigner J.H. received a 275-page submission for his appeal from the Exportability Team, advising him that his appeal was to be heard at the TS Liverpool. Given that J.H. had requested his hearing to be handled by TS Sutton, this proved a further attempt by the DWP to obstruct his right to a “fair and reasonable” hearing, as J.H. is not physically able to travel to Liverpool. After much correspondence and telephone calls, J.H.’s case was passed to Sutton and a date for a First Tier hearing given for 10 November 2009. At the same time, Age Concern England (ACE) offered J.H. legal representation, to be provided by the Child Poverty Action Group (CPAG) who have had success in previous exportable benefit appeals.

In mid-September, J.H. received a letter from European Commissioner for Social Affairs, Jackie Morin, in response to correspondence sent some time earlier in respect to his rejected claim. The letter advised J.H. of the EC’s intention to initiate infringement proceedings against HMG for use of the “26/52 week rule”, as it is “contrary to Community law” (reference 2009/2193). Several other claimants were also advised of the infringement proceedings by the EC and, accordingly, passed this information to the DWP – who denied any knowledge of it and continued to refuse claims on this basis. In fact, recent correspondence received by Group members from Terry Moran, CEO of the PDCS, and his minions at the Exportability Team, decrees that:

“We have been notified of the decision of the European Commission to initiate infringement proceedings against the UK under Article 226 EC in relation to the "past presence" requirement.

We have carefully considered the application of the "past presence" requirement and believe it to be compatible with European Community law.”

However, following the issuance of the EC’s infringement proceedings, J.H.’s November appeal date was cancelled, as “the DWP’s presenting officer was no longer available”. Two further dates of end-November and mid-December were also rejected as unsuitable by the DWP.

During this period, another member of the Group, P.S. residing in Greece, received his appeal submission from the DWP. The main body of P.S.’s submission was made up of 22 pages of a duplication of J.H.’s submission, along with a request to the TS by the DWP that these two cases – plus one for someone residing in Spain – be linked, under the banner of “the exportability reconsideration cases”, to be heard as three lead cases. According to the request this will allow the DWP to “submit further and more submissions on the common legal issues”. Additionally, in respect to the quoted 350 similar cases, the DWP maintains that “staying other cases which raise the same legal issues will mean that once the lead cases are finally determined, the stayed cases can be almost entirely resolved without the need for further litigation”.

It should be noted that J.H. has not been told of this request by the DWP, instead only finding out due to contact with P.S. – through the UK/EU Disability & Carers Group – and via CPAG, who will be representing all three test case claimants (linked or not). To date, the cases are with a judge at TS Sutton who will be making a decision on the matter of linking by end-January 2010.

A Shameful Parliament.

Below is republished an article by Paul Braithwaite, the leading fighter on behalf of the Equitable Life investors.

It displays so very clearly the self serving, time serving aspect of Politics in Britain. Is it not appalling that only 60 or so MPs actually heard the debate and yet 563 voted on that debate largely on party lines. I feel that the same stubborn resistance to act on behalf of the citizen is displayed towards the expatriate pensioner. Who will rid us of this Parliament? It is a disgrace and a joke.

To go to the start of this blog click here

Demoralised by Commons vote on Pensions fight

For a very long time I've been the co-ordinator of the Equitable Members' Action Group (EMAG), the organisation that seeks to hold this government to account for failed financial regulation of the Equitable Life pension company.

For nine years, with the support of 24,000 members, we've struggled unsuccessfully against establishment delays and denial. Yet at each step, we have prevailed and been vindicated in our claim of injustices. First this was by the independent inquiry of Lord Penrose. Then a substantial enquiry by the Brussels Parliament. A four year study by the Parliamentary Ombudsman (PO), the only formal body that can recommend compensation, reported in July 2008 on finding "A decade of regulatory failure" and a recommendation of substantial compensation for Equitable Life's victims. That was followed by two more unequivocally supportive reports by the Select Committee on Public Administration (PASC), under the chairmanship of Labour's own Dr Tony Wright.

But Yvette Cooper, then Chief Secretary to the Treasury, told Parliament on 15 January that the government didn't agree with the PO and in consequence would only be setting up a limited hardship charity scheme. So, reluctantly EMAG finally went to Court, having raised more than £300,000 towards legal costs. On 15 October the Divisional Court found in EMAG's favour and instructed the government to go back to the drawing board. Not a bad track record in a long-standing David and Goliath battle, I hope you'd agree.

But on 21 October the Commons debated an Early Day Motion (1423) that I had helped Vince Cable draft. It is THE most supported motion in this parliamentary session by a country mile, with 340 MPs having signed, calling on Parliament to honour the findings of the PO on Equitable Life. That's a clear majority of voting MPs.

I sat in the Strangers Gallery on Wednesday and listened to many warming, worthy speeches. Perhaps the most outstanding was by Tony Wright, who said that it was deplorable that the debate was not subject to a free vote. About 60 MPs attended any or all of the three hour debate. Extraordinarily, when the division bell sounded 563 MPs trooped through the lobby and the government won by 25 MP's votes. How had these extra 500 plus MPs formed their voting intention without having heard one sentence of the debate? The answer was, of course, lay in the three line whip.

Many of the Labour MPs who trooped through the lobby (including Frank Dobson) had been amongst the 113 Labour MPs who had previously signed up to exactly the same wording as the debate's motion. Only 17 Labour MPs had the moral courage to vote with their conscience against the government. Glenda Jackson, who has shown consistent disdain for Equitable Life's sufferers, was not one of them.

I came away utterly disillusioned with Westminster and convinced that there's more power, honesty and justice in Camden Town Hall than there is in the Commons. No wonder voters are turning away and disgusted with their MPs - with some honourable exceptions. The fight continues.....

Paul Braithwaite

.

French MPs for France represent UK French Residents!

To go to the start of this blog - click here

The British Citizen abroad is denied a lifetime's right to vote as a British Citzen  - Ah! if one was Italian, Romanian, Polish, almost any other nation - and now the French go even further!  -Look at CONCERN TWO below.

From The Times   October 26, 2009

French expatriates in UK to have MP in national Parliament

Adam Sage in Paris

In the exclusive streets of South Kensington, a battle is looming over who will be chosen as, in effect, Britain’s first elected representative to the next French parliament.

Legislation has been passed to give French citizens who live abroad their own MPs in the 2012 national elections. The law creates 11 constituencies for expatriates — a move that officials say is without international precedent.

The third constituency covers the UK, Irish Republic, Scandinavia and the Baltic states. But 102,470 French voters are registered in the UK, compared with 22,071 in all the other countries that make up the seat, and authorities believe that the real number of French residents in Britain is at least double the official figure. The winning candidate will therefore effectively be an MP for Britain, say French officials.

The post will be prestigious, with constituents including some of France’s most successful figures, such as Arsène Wenger, the football manager, Marc Lévy, the country’s bestselling author, and Renaud, a pop star.

Jockeying has already started, with UK branches of French parties trying to resist moves by their headquarters to nominate Paris heavyweights for the seat. The UK-based politicians say that people already established in Britain would have a better chance of being elected.

The campaign will centre around South Kensington — a bastion of the French community — where les candidats are looking to establish offices. Polling stations will be set up in the Charles de Gaulle lycée in London, as well as other places frequented by the French — which could include cafés, according to Hervé Fabre-Aubrespy, the government adviser overseeing the move. Postal and electronic voting will also be allowed.

“It is a challenge for us, because nothing similar has ever been done anywhere,” said Mr Fabre-Aubrespy. Although Italy and Portugal elect MPs to represent citizens living abroad, “no one has carved the world up into constituencies in this way”, he said.

British citizens who live overseas, for example, vote in the constituency that was their last address before leaving the country. After 15 years abroad, they lose their right to vote. Similar rules have applied in France until now.

The initiative stems from a promise by President Sarkozy to “reinforce the link between the Republic and its expatriates” — estimated at up to 2.5 million worldwide. Axelle Lemaire, of the opposition French Socialist Party in London, said: “French people who live abroad must be represented to defend their living conditions . . . Their current representatives do not have the political weight to do that. It is a democratic anomaly.”

But she accused Mr Sarkozy of “butchery” in drawing up districts which critics say are designed to enhance the prospects of his party. There is also anger over the abolition of 11 constituencies in France to make room for those abroad.