Tag Archives: HMRC

Sam Allardyce summarizes HMRC and APNs

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Sam Allardyce says it like it is:

“It’s the most corrupt business in the country at the minute, HMRC”

“They fly out tax demands without any real knowledge whether they should or shouldn’t.”

“They just put ‘em out willy-nilly and  people s*** themselves and pay them.”

“Then they go to your accountant, and if you’ve got a s*** accountant, the accountant s**** himself and says, well you must owe them, you had better pay it.”

Sounds spot on to us!

 

For HM Government, are well all like Pavlov’s dogs?

War is peace

Last month, a horridly biased propaganda piece published in the Economist  made many alarm bells go off for those familiar with mental manipulation techniques – to the point that some readers questioned whether the infamous “nudge unit” could have helped pen the piece.
Would we put it past HMRC to now plant articles in reputable publications? Certainly we wouldn’t.

One commenter well versed in Behavioural Psychology offered interesting insights into the methods used and the aims behind them.

 “Some of the presuppositions in the language lead me to wonder if it could actually have been written, in full or in part, by a former department of the Treasury known as the Behavioural Insight Team.

To let you understand, the Behavioural Insights Team used to be a department of the Treasury but have now been hived off as a private company part owned by individuals and part by the Government. They use Behavioural Psychology to influence your decisions. One of their stated objectives is enabling people to “make better choices for themselves”. Oh really! Rather Orwellian I feel, but then behavioural psychologists do believe that we are just animals that can be manipulated, remember Pavlov’s dogs? Interestingly it would seem that Behavioural Psychologists must presumably believe that everyone just operates on animal instinct…except them. You can check out their website or indeed find them on Twitter. Their aim is to influence your behaviour and it would appear to be highly lucrative for them. Indeed in their first year of trading they managed to amass a Turnover of £4.8million and made a profit of £1.8 million. Their customers primarily being you and me, the taxpayer, in the guise of other government departments. I don’t know who will benefit from that profit but I do know that they are part owned by an EBT (Employee Benefit Trust). You really couldn’t make this up!

I digress. Back to the article.

It starts with the heading which pre-sets the expectations by referring to ‘dodgy’ tax structures.
The opening sentence states a bare faced lie (that tax avoidance isn’t legal) and makes no apologies or no attempt to water it down, so if you accept the source as being knowledgeable or authoritative, then there is a chance that you accept the opening, shamefully false, statement and if you read on without questioning that….then the scene has been set.

The first paragraph explains who is going to be the target of the article/attack and even gives them a derogatory name in quotes so that we can be relieved that it is not us who is the target, we can sneer at the “pinstriped mafia” who are the target and we are effectively given permission to dislike them and see them as the enemy, and of course putting this in quotes actually gives it authority as in “experts say”…, but then because it is in quotes, you can’t pin it on me because I didn’t say it.

The third paragraph implies that those who design, market or facilitate the use of tax avoidance arrangements could be fined a sum equal to 100% of the tax, but as Dr Bartolo has already very eloquently pointed out in the comments section, tax avoidance is perfectly legal (and any attempt at quantifying it is purely a wish list of HMRC). Surely you can’t fine someone for acting within the law. Quite so, but the paragraph reads as if it will be the case that anyone in the vicinity of the tax structure will be fined, legal or not.

This is an attempt by the Government to influence behaviour rather than run the risk of challenging these tax avoidance promotions in court and face the possibility of losing.

In this case they are trying to frighten the Accountants and similar professionals away from this area of tax avoidance. It’s all about collecting more cash. What I object to is the fact that they are trying to do it covertly by using NLP type language structures designed to influence behaviour and it’s hidden within their publications. The Behavioural Insights team are proud to call themselves the ‘nudge’ unit. They are trying to nudge you in the direction of the behaviour they want to see you take, even if that means you pay more tax than is legally due. They think they are smarter than you. It is no coincidence that HMRC recently changed its stated aims from collecting the right amount of tax, to ‘maximising revenues’”.

Other comments all also worth a read (notably those of Dr. Bartolo)

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A can of HMRC worms

canFor a casual onlooker, HMRC’s recent obsession with retrospective tax legislation (once a taboo and something to be strictly reserved for “wholly exceptional” situations) as well as their extreme level of vindictiveness against normal, non-fat-cat individuals, may be somewhat puzzling.

Indeed, what is it that is “wholly exceptional” about contractor arrangements that have been (and still are) marketed to tens of thousands of independent professionals for over a decade, with HMRC’s tacit approval? The answer is: “nothing“.

So, we have to look elsewhere for clues.

To understand HMRC’s otherwise inexplicable resort to what can only be seen as very desperate measures, we have to go back to the beginning to the early noughties and in particular to the introduction of the infamous IR35 legislation, which came into force in April 2000.

As is the case anytime HM’s paper-pushers attempt to micromanage the behavior of contractors and entrepreneurs (species so alien to them that they might as well inhabit another dimension), a slew of unintended consequences followed.

One of these unintended consequences was the sprouting of the so-called “contractor scheme” industry, which restored to independent professionals the certainty as to their tax status which had been taken away by IR35.

For nearly a decade and a half, HMRC allowed these schemes to exist, to be promoted, to operate, without batting an eye.
For nearly a decade and a half, year after year HMRC accepted fully transparent tax returns from taxpayers utilizing such structures without ever uttering a bad word about the arrangements.

The problem is that by adopting this complacent stance, HMRC in effect validated the very narrative used by the promoters: “HMRC is fine with it. They are not saying anything about it because they know it is all above board”.
Sometimes, not always, an individual would receive a “notice of enquiry” from HMRC, which would state in essence: “I would like to look into your tax return. Every year we check a number of tax returns. You have nothing to do, and I will let you know if I find anything wrong.

This would more often than not prompt a panicked contractor (whose risk appetite generally stops at “being out of contract”) to run to the structure’s operator, only to be reassured that “HMRC routinely sends this letters to anyone who has disclosed participation in a contractor arrangement” (keyword: disclosed).
“Don’t worry. They will not do anything further
“, they would say.

And….

That is precisely what would happen

For 10 years, there would be no follow-up whatsoever. Result? “What the promoter said is true!”, the contractor would think.

So the contractor is reassured. The contractor recommends the scheme to other contractors looking for certainty and peace of mind.. Lather, rinse, repeat. The scheme industry grew exponentially. Promoters got rich beyond their wildest expectations.

At this point, it is necessary to pause, and understand this crucial point:
“Contractor schemes” would have remained a very marginal thing had HMRC done as little as lift a finger, get off their behinds, and produce back then one of the cutesy little “tempted by tax avoidance?” leaflets that they have been sending lately to every contractor and their dog – a good ten years too late.

By looking the other way, HMRC did in effect validate the promoters’ narrative that “HMRC is ok with it”, resulting in schemes being recognized in the contractor community by and large as a “safe” vehicle (even more so if DOTAS-registered).

If you are looking for the number 1 factor for the boom of “Contractor schemes”, there you have it. The operators simply couldn’t have dreamed of a better ally (or dare we say tout?) .
The proliferation of “schemes” could have been trivially easy to stop dead in its tracks, if it hadn’t been for the complacency/incompetence/complicity of HM’s services.
What have HMRC been doing (or rather, not doing) in the previous 10 years? Who was in charge, and who failed miserably in their most basic duties?

This is the can of worms that they don’t want opened.

With this in mind, it becomes crystal clear why the Revenue are now so busy trying to organize a cover-up of epic proportions, from which there will be no coming back for contractors. And why, seemingly, anything goes: retrospection, lies, revisionism, exceptional “2019” charges.

It’s a tough job though, with some 30 000+ witnesses to silence (some of which – imagine that – insist on exercising their legal rights)

HMRC did not want to litigate sound schemes and lose (current count of HMRC victories against contractor schemes: zero*), so effectively it appears that someone high up had a long silent think over whether and how to go retro. Thus the abomination we know as APNs were born.
Make no mistake: HMRC do NOT want their failings examined by the judiciary. Therefore everything must be and is being done to prevent any “contractor scheme” court case to go ahead.
But this too shall fail.

This pungent can will soon be cracked open in earnest, and the many worms it contains will be put under a microscope one by one for detailed examination.

Something tells us that there is going to be a lot of “Oh”‘s and “Ah…”‘s.

*: for all of HMRC’s references to the “Boyle case”, it is important to consider that “Boyle” failed on implementation, not on the underlying principles of the arrangement.

An interesting quote from the new Chancellor

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In the wake of the sad, sad news of Mr Osborne’s forced exit (through the back door) from the Cabinet, we present you a couple of historical quotes from new Chancellor Philip Hammond.

Assurances that wide powers will be used only narrowly in practice are no substitute for tightly drafted legislation. There remains a real possibility of inflicting damage on some of the UK’s most dynamic business sectors in the medium term, and thus of damaging the UK economy’s international competitiveness in the long term.”

(…)

“A taxpayer is entitled to know with certainty – be it an individual or a multinational corporation – what he may or may not do in planning his tax affairs. He is entitled to expect that his treatment be laid down in statute, not determined by administrative fiat; he is entitled to expect that another taxpayer in similar circumstances will receive treatment similar to his; and he is entitled to be protected from retrospective or retroactive legislation.

Sounds familiar / contemporary? This is from 2005, and commentary on a Labour Finance Bill.

Of course, Conservatives are no stranger to spectacular U-turns, so time will tell if the new Chanceller will do a “Gauke”, or remember his words from yesteryear and act in accordance.

If anything, let’s hope that the change in personnel at the Treasury opens the APN / Osborne ultimatum can of worms in earnest, and puts the whole Osborne-devised scapegoating operation under the scrutiny it deserves.

More on HMRC’s latest APN mass withdrawal

IMG_20160507_200809From Tax Journal:

“(…) One of the grounds of challenge was that condition C (in FA 2014 s 219(4)) was not met. Condition C is that, amongst other things, the chosen arrangements are ‘DOTAS arrangements’. Section 219(5) defines DOTAS arrangements as meaning ‘notifiable arrangements’ which have been allocated a scheme reference number. In other words, the arrangements must be notifiable under the DOTAS regime, as a matter of law. The fact that the arrangements were notified to HMRC is irrelevant for the purposes of ascertaining whether condition C has been satisfied.
HMRC took some six months to consider this ground of challenge before finally accepting that the arrangements were not notifiable under the DOTAS regime and that the APNs would therefore be withdrawn (…)
HMRC may have to accept this ground of challenge in relation to other similar EBT arrangements as it is obliged to be consistent in its approach and to treat all taxpayers in a similar position in the same way. “

HMRC forced to withdraw more contractor APNs following Judicial Review

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After Montpellier last December, more unlawful APNs are being withdrawn following challenge by the taxpayer. This time it is for the Premier Strategies structure

From the FT :

May 27, 2016 5:43 pm

HMRC backs down on upfront payment of disputed tax

“A legal challenge has forced HM Revenue & Customs to back down over hundreds of tax demands issued to users of offshore trusts.

HMRC’s decision to withdraw demands to produce cash up front — known as “accelerated payment notices” — followed the launch of judicial review proceedings by scheme users who argued they should be exempt. (…)
 Adam Craggs, partner at RPC, a law firm that brought the challenge, accused HMRC of taking a “shoot first and ask questions later” approach to the notices. He said they had a potentially serious impact on taxpayers including the risk of “being made bankrupt or being forced to conduct a fire sale of their home or other assets in order to raise sufficient funds”.
(…)
The move is the second time HMRC has been forced to withdraw accelerated payment notices. In January, up to 2,000 individuals who used employment tax schemes promoted by Montpelier Tax Consultants, an Isle of Man-based firm, won a reprieve.”

Dotas Scandal are fully expecting a sorry for the inconvenience note to be sent by HMRC to those who were forced into fire sales of their family homes and to the families of those who just couldn’t cope with the bullying anymore.

We are on record maintaining for 2 years+ that the basis of operation of the APN regime would be “issue APNs to everyone and their dog, and count on taxpayers not having the know-how and funding (especially AFTER they have been forced to pay) to challenge the lawfulness of the demands”.

That’s terminal machiavellianism, directly in contravention of HMRC’s charter mandating fairness to all (NOT “unfairness to all”), and in striking contradiction with the reassurances given to the Treasury Select Committee: “HMRC will only seek accelerated payment in cases where there has already been a tribunal decision in their favour” (Lin Homer 09/07/2014)

How long will HMRC be allowed to continue?

How often does your Government lie to you?

From the  Journals of Robert Maas

I’m ashamed to admit it but I voted Conservative at the last general election.  Fortunately most of my neighbours voted Labour so my vote didn’t matter.  But I’m still embarrassed to have done so.  Why?  Because I am becoming increasingly tired of the Conservative government lying to me all the time.  That may be a bit of an exaggeration as I do not have the breadth of knowledge to gauge that in non-tax matters.  But I do know that they do so when it comes to tax.  Lying may be a bit strong too.  It may be that the government believe that once Margaret Thatcher abolished most of the grammar schools in the early 1970s, the standards of State education have plummeted to such an extent that the citizenry cannot cope with the truth.  But I was a grammar school kid.  The State educated me fairly well, so I don’t need protecting from facts.

This article has been prompted by an HMRC Technical note on what they call “disguised remuneration avoidance schemes.  Let me make clear immediately that I have no problem with HMRC tackling tax avoidance schemes.  I am delighted when they do so – albeit that my understanding of what is a tax avoidance scheme seems somewhat different to HMRC’s.  HMRC tell me that “the government’s view is that these schemes don’t work”.  The government is of course entitled to its view.  It is also entitled to bring in legislation to reinforce its view.  But what the document is largely talking about is Employment Benefit Trusts (EBTs).  Whilst I do not wholly discount the possibility of the Cabinet agenda having included a discussion on whether or not EBTs “work”, I am a bit horrified if that is what happened, as there are enough strategic issues for the government to worry about without the collective Ministerial talent being diverted to considering the efficacy of historic tax arrangements.  Of course I fully accept that David Gauke, who has ministerial responsibility for HMRC, may have himself immersed himself in the tax legislation and the detailed documentation of thousands of EBTs and formed his own conclusion that EBTs do not work.  But even if he did so, his considered opinion is just that; it is his view, not that of the government.  As a solicitor, he is capable of doing so, although whether such industry is a sensible use of his ministerial time and the high salary us taxpayers pay for his services is another question.  But I think it is more likely to be HMRC’s view than the government’s.  I would also make the point that, as far as I am aware, although HMRC have won a number of cases before the Courts and Tribunals, none of these have been on the basis that EBTs do not work, but rather than in those particular cases what actually happened did not reflect what the parties had intended.  Accordingly HMRC’s view – or the government’s view if that is in fact the case – is not universally shared.

But it is not simply that view that concerns me

The document goes on to say, “the package of changes announced by the Chancellor at Budget 2016 will ensure that those who have used or continue to use a disguised remuneration tax avoidance scheme will pay tax and NIC on that remuneration as Parliament intended”.

Parliament in fact enacted legislation against disguised remuneration (which includes some payments by EBTs) in 2011, but only in relation to transactions undertaken after 8 December 2010. That suggests that Parliament has no view on disguised remuneration before that date. Yet the Budget announcements are mainly directed at pre 8 December 2010 EBTs, so it is wrong to pretend that those changes are in any way aimed at what Parliament intended.

So, if I am not a fan of EBT loan arrangements, and some, at least, of them, like that in Murray Group, do not avoid tax at all, why should I care if HMRC and/or the government lie to me and the rest of the citizenry in order to seek to persuade us that the Chancellor is right to attack such arrangements entered into pre 2011? Well, apart from the fact that I don’t like being lied to full stop, it is because the lies are to hide the fact that the Chancellor intends to introduce retrospective legislation to tax now (or rather in 2019) the loans that were made by EBTs before 2011. Parliament is normally violently opposed to retrospective legislation. It accordingly seems that by pretending that Parliament was opposed to such loans pre 2011, the Chancellor thinks that they will not realise how clearly retrospective his proposed legislation is. What the Chancellor is really saying is that if a person received a loan from an EBT before 8 December 2010, he should either voluntarily pay tax on the capital amount, even though it is probably not taxable at all under current laws, or he should repay the loan before 5 April 2019, and if he chooses to ignore both of these options and insist on exercising his legal rights under the loan agreement, then Parliament will introduce a new law to tax him in 2019 on money he received in a non-taxable form in 2001 or 2009, or even 1979. That is retrospection with a vengeance!

A CTA’s open letter to HMRC

coercition(As posted in the comments of Graham Webber’s “Tales from the front line” in Taxation magazine )

“Below is the text of a (now open) letter sent to the Assistant Director of HMRC’s AP Review teams some 2 months ago. It raises many of the issues highlighted above. And I have not received so much as an acknowledgement.
Perhaps HMRC might care to respond publicly?

Dear Sir

Representations regarding the accelerated payment notice (“APN”)

I am a Chartered Tax Advisor representing over 2,000 taxpayers who have received APNs, many of whom have made written representations to your office. I wish to address, directly, concerns over the way in which those representations are dealt not only by your office but by all AP teams. My concerns are not with individual officers but with the policies to which they are forced to adhere. I believe they are both unfair and ultra vires.
My concern arises from the following scenario, which has arisen for many taxpayers involved in contractor loan arrangements.

HMRC issues an APN using “estimated figures”. The, unnamed, ‘designated officer’ multiplies the individuals salary by a multiple of 4 or 5. The reasons for the choice of the actual multiple are unclear. What is unquestionable is that HMRC knows the figures to be incorrect.
In these circumstances it is highly questionable that the APN is valid at all. In order for an APN to be valid its content must accord with s220 FA 2014. S220(3) provides that the notice must specify the ‘understated tax’. S220(4)(b) defines the “understated tax” as being (in the case of a notice given by virtue of section 219(4)(b) (cases where the DOTAS requirements are met)), such adjustments were made as are required to counteract what the designated HMRC officer determines, to the best of that officer’s information and belief, as the denied advantage.

APNs issued using salary multiples do not use the “best of that officers information”. To arrive at the understated tax the designated officer should refer to the form P11D submitted by the employer. It is that which is “best of the officers information”. The P60, and applying a random multiplier, cannot be said to be the “best of the officers information” when HMRC are already in possession of the correct figures. But the reviewing officers dismiss those arguments.

Furthermore, and it is this with which I take greatest issue, is what those officers do upon receipt of written representations from taxpayers who provide the correct loan figure, but no supporting evidence. In short those representations are rejected out of hand, most commonly after the expiration of the 90-day representation period, thus meaning that further evidence cannot then be provided. If it is, it is routinely rejected as being received outside the 90-day window. And this is done despite the knowledge that HMRC’s own figures are an estimate calculated using a random multiple of the wrong information (salary).
I believe that in dismissing these representations HMRC is exercising its powers unfairly and unlawfully.

The law places the onus upon the ‘designated officer’ to issue an APN using “the best of that officers information or belief”. It is highly questionable, in the circumstances above, that that duty is being carried out properly. However, in making representations upon receipt of an APN, the law (s222(2) FA 2014) requires only that those representations be made in writing, within 90 days of the notice being given, “objecting to the amount specified in the notice”. Nowhere does the law require the taxpayer to provide evidence to support their assertion. Moreover nor does the HMRC Guidance, last updated on 23 July 2015, suggest that supporting evidence must be provided.

Yet perfectly valid representations are routinely rejected stating that HMRC cannot simply accept the taxpayers (written) word on the correct figure. This despite the taxpayer having complied fully with their statutory requirements and the reviewing officer knowing that HMRC’s figure is itself an estimate. In doing so HMRC is acting inconsistently with its own Charter, which states unequivocally at 1.1 “We’ll presume that you’re telling us the truth, unless we have good reason to think otherwise”. What good reason does HMRC have for believing that taxpayers making written representations against their APN are not telling the truth when providing the correct loan figures? Upon what legal basis are valid representations being rejected?

In circumstances where HMRC issue APNs knowingly using incorrect figures, reject valid representations as to the correct figure and then pursue payment vigorously with threats of bailiff visits I am often drawn to the peculiar case of Rex v Puddle in AP Herbert’s Uncommon Law, 1935. Perhaps individual ‘designated officers’ and those reviewing valid representations, might bear that in mind when exercising the powers given to them by Parliament in apparent contravention of the law and HMRC’s own charter?

In light of my concerns I would be grateful if you would respond, in writing, setting out:

· The legal basis for HMRC exercising its powers in rejecting valid representations in circumstances outlined above,

· Why HMRC is not complying with a fundamental tenant of its own Charter, and

· Why HMRC believes that it is discharging its duties fairly and in accordance with the law.

I look forward to receiving your response.

Yours faithfully”

 

 

 

Reflections on “contractors schemes” and HMRC as “Judge, Jury, Executioner”

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From gordo at  AccountingWeb (part of this discussion thread)

Understandably there is emotion on both sides.

We can’t blame the Accountants on here for standing their grounds. Many have very clearly said on a number of occasions that they would never have recommended such schemes and that they view them as highly abusive.

So if we don’t want the Accountants to label all Contractors the same then let’s not label all Accountants the same.

By the same token it is clear that some Contractors probably did get involved in order to minimise their tax liability. However others were potentially misguided, or mislead, but often they took advice from what they believed was a reliable source and they fully disclosed the matter on their Tax Returns (under advice from Accountant to prevent Discovery). So full Disclosure to HMRC who already had the schemes registered some years before and who got an Employers Annual Return every year with a list of employees.

We can’t blame all QC’s either. We don’t know what their remit was and besides it appears to me that what was advised did work as the law stood at that time. Let’s not forget that. Can’t sue somebody because HMRC introduce legislation that retrospectively impacts upon the planning done (assuming such caveats were given and if it’s a QC then you can bet they were).

What about the Promoters? Were they all a bunch of rogues? Well I can’t be sure of all and there are certainly some that I have researched on the internet that appear to be able to decide in 5 minutes whether it was the right strategy for your circumstance and who offer 90% return or more, so some may be rogues. However I can categorically say in my own experience that the ones I spoke to were definitely not rogues. Indeed, they were very specific on the warnings on risk and their analysis was impressive. The risk warnings came before the analysis and they also included all the risks of the alternatives, such as IR35.

Again, we cannot be certain which providers were careful with their warnings and which were not. So we can’t label all providers together. Neither can we be certain who understood the warnings, who ignored the warnings and who didn’t receive any warning. Certainly, I fully understood the warnings because as an Accountant myself, I understood (most of) the tax issues.

So the only thing I can think to do: legislate from this day forward to stop any new loans and litigate those historical schemes that HMRC see as abusive. (This is not what HMRC have done. Why?)

The case I posted overnight, which came from accountingweb, on company car tax, demonstrates that HMRC will use substance over form when it suits their purposes then ignore it and argue for a strict interpretation of the law when that suits their purposes. It also demonstrates HMRC will pursue tax in cases where there is patently no income and no benefit. HMRC didn’t just try it on, they actually took it all the way to the Court of Appeal. Who sanctioned that use of taxpayers money!

Behavioural Psychologists. Behavioural psychology has its roots in conditioning. Remember Pavlov’s dogs? The Behavioural Insights team’s strap line on Twitter
is ” ..to encourage people to make better choices for themselves….Known as worlds first nudge unit. “, how insidious, better for whom and are the people aware of how they are being “encouraged” and for what purpose? Are we being conditioned, like Pavlov’s dogs, to accept Big Brother?
Can anybody tell me the definition of nudge?

There may well be a wide variation in the motives and the experiences of Contractors. I cannot be certain. I am pretty sure of what HMRC are up to, but again I cannot be absolutely 100% certain. I am broadly aware of HMRC resiling from agreements reached years ago, it would appear to be so that they can delay the day in Court (perhaps forever) and issue APN’s (Accelerated Payment Notice) demanding an Advance Payment that the Government then record as Income.

So I conclude that HMRC cannot be trusted to be judge, jury and executioner. Let’s us see this in Court and let the learned Judge(s) decide”

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HMRC should evidence open enquiries

Need material evidence to prove dowry demandAs you know, HMRC is currently conducting a campaign of delivery of Accelerated Payment Notices on an industrial scale. We are receiving very worrying feedback from readers informing us that they are in receipt of APNs for tax years where, as far as they are aware, no open enquiry exists (a prerequisite for the lawful issuance of an APN). We are hearing from accountants about figures as high as 40% of APNs where the existence of a valid enquiry is in doubt.

For this reason, we are supporting the petition started by our friends at BIG GROUP.

You will find this petition here.

Please take one minute of your time to contribute to it, and please pass the word around. Thank you.