I11.314 High Court as alternative venue on questions of law
Where the appeal was substantially confined to questions of law, an appeal could be brought before the High Court rather than the Special Commissioners in certain circumstances. This procedure has been retained, notwithstanding the overhaul of the tax appeal system. Appeal against a determination may be notified to the High Court1:
• where the appellant and the Board agree that the matters for decision on appeal 'are likely to be substantially confined to questions of law', or
• in the absence of such agreement, if the appellant applies for and obtains leave from the High Court, having satisfied the court that the subject matter falls within that category2.
In Von Ernst & Cie SA3 it was contended that there was a lacuna in the legislation as the court is not expressly given the same power as the Special Commissioners to vary a notice of determination4, but only a power to reverse, affirm or amend a determination of the Special Commissioners5. It was held that the court was substituted for the Special Commissioners and it was implicit that the court had the same powers as the Special Commissioners to confirm, vary or quash the determination appealed against.
In Bennett6 Lightman J gave leave for an IHT appeal to go directly to the High Court where HMRC did not agree to this (but did not oppose it, leaving it to the court). Lightman J held that, while it was a precondition for leave that
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