ARK PENSIONS CLASS ACTION – MISSION STATEMENT
For members of the Ark Pensions schemes and any other similar schemes involving MPVA (Maximising Pension Value Arrangements) or PRP (Pension Reciprocation Payments) or Pension Liberation (releasing a proportion of your pension before the age of 55).
THE MISSION: There are a number of challenges facing the Ark Pensions victims. What they want and need is clarity, honesty, transparency, justice and action to get their pensions back and be put into the position they should have been in before their original pensions were transferred to Ark (or any other similar pension liberation schemes).
The Ark Pensions Class Action is taking up all the challenges required to do this and give the victims back their financial security in retirement. To do this, and more, there are five distinct but inextricably-linked aspects to the mission:
- THE GOVERNMENT
- DALRIADA TRUSTEES
- FINANCIAL ADVISERS WHO SOLD THE ARK SCHEMES
- JUSTICE BEAN’S RULING (INTERPRETATION AND APPLICATION)
The Government’s Pensions Regulator investigated the Ark schemes and made a full report detailing the areas where it did not feel the schemes complied with Pension Regulations: http://www.thepensionsregulator.gov.uk/docs/DN2116109.pdf.
When I say “full” I mean “full-ish”. The Pensions Regulator has blanked out the bits it doesn’t want the public to see.
The Pensions Regulator appointed Dalriada Trustees to take control of the Ark schemes and they were suspended in May 2011. Dalriada has been recovering the original investments made by the Ark schemes and have recovered the majority (despite originally declaring them to be worthless). They are now taking steps to recover the loans made to the Ark members.
The government is responsible for HMRC who are trying to tax the Ark loans even if they are repaid.
The government department – The Financial Conduct Authority – refused to take action against the financial advisers who sold the Ark schemes, saying that it was “not within their jurisdiction” – and anyway they get to pick and choose which cases to pursue.
The government is responsible for:
- Pensions being frozen and 10% of the original Ark assets being spent on fees by Dalriada in the first two years
- Secrecy over the who/where/what/how the Ark disaster was set up, investigated and “worked”
- Failure by the FCA to take action against the negligent financial advisers who sold the schemes in the first place
- Failure by HMRC to decide clearly how and where they intend to tax the loans at 55% despite having had three years to do this and honour their own “Taxpayers Charter” (help and support taxpayers to get things right). The loans could be taxed in three different places (depending on what HMRC can get away with).
- Apathy. So far, only three MP’s out of the entire House of Commons have taken up their constituents’ cases. George Osborne has completely ignored the matter. David Gauke, Treasury Secretary, has brushed the matter aside in a “bothered?” letter without even asking about the welfare of the Ark victims or offering to do anything to help.
Dalriada were appointed by the Pensions Regulator in May 2011. The pensions remain frozen. After numerous bouts of legal action, two sets of audited accounts were sent out seven months after the end of the first two financial years. No news as to when Dalriada’s work will be concluded. Bulletins and updates sent out infrequently and Dalriada staff not great at returning Ark victims’ calls and emails. Some Ark victims have still heard absolutely nothing from Dalriada.
In the first two years since their appointment, Dalriada charged £665,039 in fees, spent £1,633,371 on legal fees and £47,695 on audit fees (10% of the total fund value). They refuse to declare how much has been spent in year three, stating that the Ark victims must wait until audited accounts are released in December 2014.
In three years, Dalriada have failed to resolve with HMRC whether the Ark loans are taxable or repayable. And failed to inform the members that – actually – they are both. Dalriada have been meeting with HMRC for some time, but claim it is nothing to do with them if HMRC tax the loans (just as HMRC are claiming it is nothing to do with them if the taxed loans are forcibly reclaimed by Dalriada).
There is still no clear idea of how safe the Ark pensions are. £11.8 million of Ark victims’ cash is held on deposit at Barclays Bank earning pitifully-low interest. (Let’s not forget that Barclays are being investigated by the Serious Fraud Office over a shady £322 million Qatar deal and have been fined £50 million by the FCA – so why chose Barclays?)
Dalriada are making a “Beddoe” application for court directions as to how to recover the Ark loans. They have stated they will not agree to Angela Brooks, representing numerous Ark victims, being present at the private hearing because the hearing is “private” and that she is an “unconnected party”.
Dalriada need to answer key questions about the future of the Ark pensions. Legal and financial professionals fear the “fee-earning machine” could roll on for years until there is nothing left of the pension funds. Unless Dalriada are challenged. And vigorously.
The Taxman has a “Taxpayers Charter”:
HMRC should read it.
In the three years since Dalriada took over the Ark pensions, HMRC have done nothing – I repeat, NOTHING – to clarify the taxation of the Ark loans. They did not even sit down and have a meeting with “pensions experts” until the end of March 2014 i.e. more than two years after Justice Bean ruled in the High Court that the loans constituted unauthorised (i.e. taxable) payments.
It must be remembered that if HMRC had not registered the Ark schemes in the first place, the original pension providers would not have made the transfers and the Ark disaster WOULD NEVER HAVE HAPPENED. HMRC have since publicly stated that they were going to put an end to the “register now, ask questions later” negligent and sloppy approach. But they lied. Angela Brooks applied to register a pension online at the HMRC website, using her own name and private address in Spain at the beginning of January 2014. Two weeks later she received her HMRC-authorised pension certificate. No questions asked.
HMRC have informed the Ark Pensions Class Action that:
- 55% tax is payable at the receiving end or at the making end of the loans (the funds). Or both.
- Dalriada have said that HMRC will also be taxing the members themselves for “making” the loans (even though they had nothing to do with it).
- Even Ark members who did not receive loans will be taxed at 55%.
- HMRC refused to be joined in the High Court proceedings in December 2011 because “it wasn’t a tax case”.
- They declined to be bound by Justice Bean’s ruling. But are now relying on it.
- They want all Ark members to complete tax returns so that an appealable decision can be issued and then the members have to appeal the tax before the tax tribunals – knowing full well that this is a lengthy, expensive and stressful process. But HMRC have deep pockets, and they don’t care.
- If the Ark members don’t get an appealable decision, HMRC will issue a determination with no appeal.
- Some Ark members have received demands to complete tax returns. Some haven’t. Some have already paid the tax “on account”. Some are so worried they can barely function.
- HMRC state that the loans are still taxable even if they are repaid.
HMRC have to be taken to task. They have blatantly contravened their own “Taxpayers Charter”. They have not lifted a finger to sort out a clear and fair way to deal with this unclear and unfair situation which is inflicting so much stress, anxiety and potential financial ruin on so many Ark victims.
The tax demands have to be vigorously challenged and appealed in the tax tribunals and some sort of justice as well as closure sought to end the misery of the past three years.
Let’s get one thing 100% straight right from the start. Financial advisers have one thing and ONE THING ONLY to sell: financial advice. Not halal chicken or horse-meat burgers; not snake oil or penis enlargement cream. Pure and simple financial advice. And it is an easy enough job because all you have to do as a “financial adviser” is ask your clients three basic questions:
- What is your risk profile?
- What is your risk profile?
- What is your risk profile?
Then all the financial adviser has to do is provide the client with three crucial bits of information:
- Here’s a copy of my professional indemnity insurance
- Here’s proof of my authorisation/regulation
- Here’s my fee for your approval (plus anybody else’s fees in the “supply chain” for this transaction)
It is worth defining “risk profile” in order to establish just how easy it is to get it right:
- First, ask the client if they are low, medium or high risk (in other words, how happy are they to lose their investment if things go tits up). If the investor says “very happy” – refer to a psychiatrist
- Second, explain the underlying investment in plain English without any gobbledygook (i.e. property or shares or precious metals or an outsider in the 3.30 at Kempton Park)
- Third, outline how the investment will be spread between a variety of different types and class of fund (after all, only a complete moron would put 100% of his client’s money into something as outrageously risky and toxic as a “death bond”!)
However, if – despite following all the basic, not-rocket-science rules of how to be a competent and successful financial adviser – things do go pear shaped, then the client can go back to the financial adviser and complain and ask for compensation and redress.
The good, professional, competent, conscientious, properly regulated and insured financial advisers will move heaven and earth to help, assist and support the aggrieved client and make every effort to resolve an investment which has turned sour. If the problem is not resolvable and the client ends up either losing money or gaining an unforeseen tax liability (or both), then the financial adviser will notify his professional indemnity insurers and ensure that the client is compensated.
As with all professions, however, there are the good, the bad and ugly. Unfortunately for the Ark members, they have been victims of financial advisers who are not only bad and ugly, but downright cowardly. In the face of their monumental cock ups, they have shown that not only do they have no conscience but they have no balls either.
The financial advisers responsible for the Ark disaster will be brought to justice. Many of the Ark victims have described them as “dead men walking”. However, the Ark Pensions Class Action wants them kept alive and healthy so that they can face both criminal and civil proceedings for justice and compensation for their victims.
HIGH COURT RULING
In December 2011, Justice Bean declared (Clause 57 of the ruling) that the Ark Pensions loans were “unauthorised payments” (i.e. taxable at 55%). In the same clause, he also ruled that they were “not unauthorised payments” (i.e. not taxable at 55%).
About as clear as mud. Either way, HMRC declined to be joined in the proceedings (or, to put it in layman’s language – they couldn’t be bothered to turn up). Their excuse was that “it wasn’t a tax case” – although they knew that tax was central to the issue. They also declined to be bound by the ruling – although they are subsequently relying on the ruling that the loans WERE unauthorised payments and ignoring the bit that says they WERE NOT unauthorised payments.
Many highly-qualified and experienced legal and tax professionals think Justice Bean was wrong. Equally, James Bulger’s family thought Justice Bean was wrong when he sentenced Jon Venables to two years in prison for distributing child pornography, and stated it was important to protect Venables’ secret identity.
To be honest, Justice Bean’s ruling didn’t say much that the Pensions Regulator hadn’t already said in their report (only without the X’s). http://www.professionalpensions.com/digital_assets/3826/4568_001.pdf
However, the judge did say one very significant thing which seems to have escaped HMRC and that is at Clause 53 where he quotes the case of DCC Holdings v HMRC heard by Lord Walker of Gestingthorpe and a bunch of other judges who agreed with him about the principles of interpreting and applying laws (also known as “common sense”):
“…the correct approach in construing a deeming provision to be to give the words used their ordinary and natural meaning, consistent so far as possible with the policy of the Act and the purposes of the provisions so far as such policy and purposes can be ascertained; but if such construction would lead to injustice or absurdity, the application of the statutory fiction should be limited to the extent needed to avoid such injustice or absurdity…”
To put the above into layman’s terms, this means “if the law is an ass, don’t act like a donkey”.
The Ark Pensions Class Action puts it to His Honour Justice Bean, HMRC, The Pensions Regulator, Dalriada Trustees, the Treasury Secretary, the Pensions Minister, the Chancellor, the Prime Minister, the Financial Ombudsman, the Pensions Ombudsman, the Parliamentary Ombudsman (and any other Ombudsman you can think of) that the following position is both unjust and absurd:
- Dalriada will be reclaiming the Ark loans
- HMRC will be trying to tax the Ark loans – at least once, if not twice or three times if they can get away with it
- The tax on the loans (whether 55%, 110% or 165%) will be repayable even if the loans are repaid
- Even those Ark victims who did not receive a loan will be taxed at 55% because they “intended” getting a loan
- Even those Ark victims who didn’t receive a loan because they didn’t want one will be taxed at 55% because they “made” a loan (presumably in their sleep)
The Class Action will be calling upon all involved in this disaster to interpret the law justly, and with intelligence rather than with downright stupidity.
Ark Pensions Class Action
14th May 2014