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 The preliminary issue raised on this part of the appeal is whether section 43 of the Taxes Management Act 1970 (“TMA”), which imposes time limits on claims, applies to a claim for payments made by the Trustees of the BT Pension Scheme (“the Trustees”) under section 231 of the Income and Corporation Taxes Act 1988 (“ICTA”). If it does then, subject to questions of community law which remain to be decided, many of those claims are time barred. At the hearing before the First Tier Tribunal the Trustees accepted that, subject to arguments of community law, section 43 did apply. But on appeal to the Upper Tribunal (Tax and Chancery Chamber) (Warren P and Judge Herrington) the Trustees took the point that, simply as a matter of interpretation, it did not. The Upper Tribunal held, contrary to the Trustees’ submission, that section 43 of the TMA did apply. Their decision was promulgated on 28 February 2013 and is at  UKUT 105 (TCC),  STC 1781. The Upper Tribunal considered a number of issues, some of which will have to be referred to the CJEU in due course. But the parties were unable to agree on the form of the questions to be referred to the CJEU. Although it had been thought that a one day hearing would suffice to resolve those issues, the parties agreed that it would not. However since this court had already reserved a day’s hearing, we considered that the day could best be used in determining the preliminary issue I have described, which if decided against HMRC would reduce the number of questions that had to be referred to the CJEU.
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