Appeal against penalties imposed for the late submission of six monthly CIS returns on the grounds that the penalties were out of proportion to the seriousness of the default and that the legislation could not be imposed because it was in contravention of the Human Rights Act 1998 on the grounds of proportionality and discrimination – appeal dismissed
[2011] UKFTT 337 (TC)
Bailii
England and Wales
Taxes Management
Updated: 09 November 2021; Ref: scu.443058
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by other companies should proceed through the Commissioners who could implement European law directly. The taxpayers challenged their jurisdiction to hear certain claims.
Held: Where the Commissioners had jurisdiction, the taxpayers had an obligation to take their claims to the Commissioners.
Where the time limit for use of the statutory scheme had not expired, a taxpayer’s only way of challenging a taxing provision as contrary to European law was by making use of the statutory tribunal scheme, as opposed to judicial review.
Lord Nicholls of Birkenhead said: ‘Underlying this conclusion is a point of general policy concerning cases where an applicant claims he has been wrongly deprived of benefits to which he is entitled under directly applicable provisions of Community law. Where Parliament has assigned to a specialist tribunal responsibility for adjudicating on disputes over the payment of such benefits, and an application to that tribunal is not time-barred, in the ordinary course the primary remedy for non-receipt of such benefits is to have recourse to that tribunal. That tribunal will give effect to the applicant’s rights under directly enforceable provisions of Community law as well as his rights under domestic law. The tribunal will afford him the benefits to which he is properly entitled. In such cases, where that course is still available to an applicant, claims in the High Court founded on an alleged breach of Community law will not normally be appropriate.’
Lord Millett said that ‘the computation of a taxpayer’s taxable profits for the purpose of determining his liability to tax is within the exclusive jurisdiction of the commissioners’
Lord Walker of Gestingthorpe referred to: ‘the general principle embodied in tax law before self-assessment, that any dispute with the revenue about an individual’s liability to income tax or a company’s liability to corporation tax is to be determined in the first instance by the general commissioners or the special commissioners.’
Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Walker of Gestingthorpe
[2005] UKHL 54, Times 01-Aug-2005, [2005] 3 CMLR 2, [2005] STC 1357, [2005] STI 1336, [2006] 1 AC 118, [2005] 3 WLR 339, [2005] 4 All ER 1141, [2005] BTC 402, [2006] Eu LR 131, 77 TC 504
Bailii, House of Lords
England and Wales
Citing:
Cited – Imperial Chemical Industries v Colmer ECJ 16-Jul-1998
A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based . .
Cited – Metallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
Appeal from – Loss Relief Group, Test Claimants In v Inland Revenue CA 28-May-2004
The taxpayers sought determination by the court of their various claims for group tax relief. The High Court had declined jurisdiction.
Held: The appeal was allowed. The judge’s attitude was one which would perhaps appeal to most lawyers . .
At first instance – NEC Semi-Conductors Limited and Other Test Claimants v The Commissioners of Inland Revenue ChD 24-Nov-2003
UK companies were subsidiaries of companies resident abroad, and complained that they were unable to make group income elections.
Held: The prohibition infringed non-discrimination provisions of double taxation agreements – non-discrimination . .
At First Instance – Claimants under the Loss Relief Group Litigation Order v Inland Revenue Commissioners ChD 3-Mar-2004
Various claimants sought to have issues of law on group relief and other issues settled under a group litigation order.
Held: The High Court had no jurisdiction to hear such matters until they had first been raised in ordinary tax appeals . .
Cited – In re Vandervell’s Trusts (No 1); Vandervell Trustees Limited v White and Others HL 15-Jul-1970
Practice – Parties – Joinder – Proceedings between subjects raising issues material to income tax – Joinder of Commissioners of Inland Revenue – Income Tax Act 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c.10), ss. 52 and 64 ; Income Tax Management Act . .
Mentioned – Barraclough v Brown HL 1897
The 1889 Act gave statutory undertakers who had incurred expenditure in removing a sunken vessel a right ‘to recover such expenses from the owner of such vessel in a court of summary jurisdiction.’ the undertakers began their action in the High . .
Approved – Glaxo Group Ltd and Others v Inland Revenue Commissioners ChD 21-Nov-1995
A tax adjustment can be made by the Inland Revenue on an open assessment following transfer pricing enquiry and direction, even after many years. The court considered that the jurisdiction of the special and the general commissioners to determine . .
At Special Comissioners – Marks and Spencer Plc v Halsey (Inspector of Taxes) 2003
Marks and Spencer Plc appealed against the refusal of group relief, on the ground that the statutory limitations on the territorial scope of group relief were incompatible with, and overridden by, Community law. The Special Commissioners dismissed . .
Cited – Regina v Secretary of State for Transport, Ex parte Factortame Ltd HL 18-May-1989
The applicants were companies owned largely by Spanish nationals operating fishing vessels within UK waters. The 1988 Act required them to re-register the vessels as British fishing vessels. The sought suspension of enforcement pending a reference . .
Cited – Amministrazione Delle Finanze Dello Stato v Simmenthal SpA (No 2) ECJ 9-Mar-1978
ECJ The Court of Justice considered a reference for a preliminary ruling, pursuant to article 1977 of the Treaty, as having been validly brought before it so long as the reference has not been withdrawn by the . .
Cited – Imperial Chemical Industries Plc v Colmer (Inspector of Taxes) (No 2) HL 18-Nov-1999
Where a group of companies sought consortium group relief, but the majority of the companies within the group were based outside the European Union, the court need not apply European Union standards to the test, but could instead apply the standards . .
Cited – D v Inspecteur van de Belastingdienst /Particulieren /Ondernemingen buitenland te Heerlen (Free Movement Of Capital) ECJ 5-Jul-2005
ECJ Tax legislation – Wealth tax – Entitlement to an allowance – Separate treatment of residents and non-residents – Double taxation convention. . .
Cited – Dorsch Consult Ingenieursgesellschaft v Bundesbaugesellschaft Berlin mbH ECJ 17-Sep-1997
ECJ Preliminary rulings – Reference to the Court – National court or tribunal within the meaning of Article 177 of the Treaty – Definition – Body competent to hear appeals concerning the award of public . .
Cited – Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen ECJ 27-Oct-1993
Europa Community law does not preclude the application of a national rule of law according to which benefits for incapacity for work are payable no more than one year before the date of claim, in the case where . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Elsie Rita Johnson v Chief Adjudication Officer ECJ 6-Dec-1994
Europa Social policy – Equal treatment for men and women in matters of social security – Directive 79/7 – Article 4(1) – Direct effect – National legislation limiting the period prior to the bringing of a claim . .
Cited – Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005
The company sought repayment of excess advance corporation tax payments made under a mistake of law. The question was the extent of the effect of the ruling in Klienwort Benson, in particular whether it covered sums paid as taxation, and how the law . .
Cited – Amon v Raphael Tuck and Sons Ltd 1956
The court analysed the circumstances under which additional parties might be joined to an action by a defendant, applying a narrow interpretation. The court considered whether a defendant may be added against the parties’ wishes: ‘There are two . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Cited – Argosam Finance Co Ltd v Oxby (Inspector of Taxes) CA 1965
A company which dealt in shares issued an originating summons in the Chancery Division requesting a declaration as to the correct method of computing its income for the purposes of loss relief. The revenue challenged the proceedings as an abuse of . .
Cited – In re Vandervell’s Trusts; Vandervell Trustees Limited v White and Others CA 1970
The deceased had sought to create a trust to benefit the Royal College of Surgeons. The parties disputed its tax effect.
Held: Lord Denning MR said: ‘We will in this court give the rule a wide interpretation so as to enable any party to be . .
Cited – Jean Reyners v Belgian State ECJ 21-Jun-1974
Europa The rule on equal treatment with nationals is one of the fundamental legal provisions of the community. As a reference to a set of legislative provisions effectively applied by the country of establishment . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Cited – Rewe-Handelsgesellschaft Nord Mbh Et Rewe-Markt Steffen v Hauptzollamt Kiel ECJ 7-Jul-1981
Europa The exemption provided for by regulation no 1544/69, as last amended by regulation no 3061/78, applies only to goods contained in the personal luggage of travellers coming from a non-member country. That . .
Cited – Emmott v Minister for Social Welfare and Attorney General ECJ 25-Jul-1991
Europa So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after . .
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
Cited – Marshall v Southampton and South West Hampshire Area Health Authority (No 2) ECJ 2-Aug-1993
The UK law limiting awards of damages in sex discrimination cases is unlawful, and fails to implement European directive fully. Financial compensation must be at a level adequate to achieve equality between the workers identified. . .
Cited – Roquette Freres SA v Direction des services fiscaux du Pas-de-Calais ECJ 28-Nov-2000
Europa In the absence of Community rules on reimbursement of national charges levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having . .
Cited – Regina v Commissioners of Inland Revenue ex parte Michael Bishopp (for and on Behalf of Partners In Price Waterhouse (a Firm)) Admn 18-Dec-1997
. .
Cited – Peterbroeck, Van Campenhout and Cie v Belgian State ECJ 14-Dec-1995
It is a basic principle of European Union law that national law should provide effective legal protection, by establishing a system of legal remedies and procedures which ensure respect for the relevant European law right: ‘For the purposes of . .
Cited – Criminal proceedings against Sanz de Lera and others ECJ 14-Dec-1995
Europa Articles 73b(1) and 73d(1)(b) of the Treaty, which prohibit restrictions on movements of capital between Member States and between Member States and non-member countries, on the one hand, and authorizing . .
Cited by:
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Blackburn and Another v West Midlands Police CA 6-Nov-2008
The claimants, female police officers, complained that male officers had received priority payments where they had received none. The defendant said that the payments were justified in achieving a proper aim, namely the encouragement of night . .
Cited – The Bodo Community and Others v The Shell Petroleum Development Company of Nigeria Ltd TCC 20-Jun-2014
15,000 or more claimants and claims on behalf of children, sought damages at common law and statutory compensation under the law of Nigeria in relation to oil spills from pipelines said to have been caused by Shell Petroleum Development Company of . .
Cited – Cotter v Revenue and Customs SC 6-Nov-2013
This appeal asked as to the boundary between the jurisdiction of the First-tier Tribunal (Tax Chamber) and that of the county court or the High Court, and the legality of the approach which the Revenue took to entries which Mr Cotter, had made in a . .
Cited – HM Revenue and Customs v Cotter CA 8-Feb-2012
Mr Cotter’s accountants had submitted a second tax return adding claims to loss relief in the following year. The claims were contentious, but he invited a review by the Revenue asserting that the losses wiped out any liability to tax. The Revenue . .
Cited – Revenue and Customs v Cotter ChD 14-Apr-2011
The taxpayer’s accountants had submitted a tax return amending the taxpayer’s own return adding claims for losses. The accountant acknowledged the contentious nature of the claim and invited a review. The Revenue sought now to recover the tax due . .
Lists of cited by and citing cases may be incomplete.
Corporation Tax, Taxes Management
Leading Case
Updated: 02 November 2021; Ref: scu.229067
FTTTx Income Tax – Anti-avoidance – transfer of assets abroad code – s739 ICTA 1988 – appellants were shareholders in UK bookmaker which transferred its telebetting business to Gibraltar – purpose of avoiding betting duty found but not corporation tax or other income tax
Relevance and compatibility of EU freedom of establishment and free movement of capital rights considered – freedoms did not apply as between UK and Gibraltar – freedoms did apply however in respect of first appellant who was national of another Member State (Ireland) – legislation incompatible – interpretation conforming to EU right given – appeals of first appellant allowed
Whether certain assessments defective because conditions for discovery assessment (s29(5) TMA 1970) and time limits (s36 TMA 1970) not met – yes
Appeals of second and third appellants allowed for defective assessments – their appeals for the remaining valid assessments dismissed in principle
Swami Rhaghavan
[2014] UKFTT 804 (TC)
Bailii
Income and Corporation Taxes Act 1988 739
England and Wales
Citing:
See also – Fisher and Others v Revenue and Customs FTTTx 14-Aug-2014
FTTTx Procedure – application to be added as party under Rule 9(3) of Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 by Her Majesty’s Government of Gibraltar on grounds it was uniquely placed . .
Cited – HP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .
Cited – Commissioners of Customs and Excise v Aps Samex 1983
It is generally right for the court to find the facts before referring questions of law to the European Court of Justice.
Bingham J restated the four requirement sfor a reference set out in Bulmer, saying: ‘(1) Will the point be substantially . .
Lists of cited by and citing cases may be incomplete.
Income Tax, European
Updated: 02 November 2021; Ref: scu.535962
PROCEDURE – application for stay of proceedings pending five references to the CJEU – application refused
[2012] UKFTT 319 (TC)
Bailii
Taxes Management
Updated: 02 November 2021; Ref: scu.462659
The taxpayer, resident here, but with substantial oversea business interests, challenged the conduct of an informal investigation of his businesses under the 2005 Act, saying that HMRC, as a creature of statute, are only permitted to do that which they are expressly authorised to do by statute. They have no general powers to do anything not authorised by statute.
Held: Nugee J was right to reject the appellants’ main contention that outside the power to investigate ‘as of right’ under a section 9A enquiry, HMRC can only use compulsory powers to obtain documents under schedule 36 FA 2008, which require a rational basis for suspecting underpayment of tax. The duty to collect tax is to collect, so far as reasonably possible, the correct amount of tax rather than simply the tax that a taxpayer accepts is due.
Section 9 CRCA 2005 gives HMRC the power to conduct informal investigations. Judicial review of the exercise of that power is available on ordinary public law grounds but in practice it will take a wholly exceptional case on its legal merits to justify judicial review of a discretionary decision by HMRC to conduct an informal investigation of the kind conducted here. Finally, the judge was correct to conclude that whatever the test, the circumstances of the appellants’ case did not meet the threshold for the court to intervene on judicial review.
Lady Justice Simler DBE, Popplewell LJ
[2020] EWCA Civ 784
Bailii
Commissioners for Revenue and Customs Act 2005
England and Wales
Citing:
Appeal from – JJ Manangement Llp and Others, Regina (on The Application of) v Revenue and Customs and Another Admn 25-Jul-2019
Challenge to the lawfulness of an investigation by HMRC of tax affairs relating to the claimant’s businesses in Europe. HMRC had been claiming a right to conduct an informal investigation using the 2005 Act. The taxpayer sought judicial review of . .
Cited – Regina v Panel of Takeovers and Mergers ex parte Fayed CA 1992
Steyn LJ said of the reviewability of decisions of the Director of Public Prosecutions: ‘. . it seems to me that, in the absence of evidence of fraud, corruption or mala fides, judicial review will not be allowed to probe its decision to charge . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
Legitimate Expectation once created not withdrawn
The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation.
Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .
Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Cited – ABC Ltd and Another v HM Revenue and Customs CA 7-Jul-2017
Temporary approval pending appeal was preferred
The company challenged refusal of fit and proper approval for registration as wholesaler of duty paid alcohol.
Held: The appeals were allowed in part. HMRC, having once concluded that the applicant was not fit and proper was not free to . .
Cited – Revenue and Customs v Tower MCashback Llp 1 and Another SC 11-May-2011
No re-opening after closure notices
The taxpayer had purchased software licences (SLA), and set out to claim the full cost against its tax liabiilities under the 2001 Act in the first year. The taxpayer said that after the Revenue had issued closure notices, it was not able to re-open . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Sharma and others v The Attorney General of Trinidad and Tobago PC 20-Jun-2007
(Trinidad and Tobago) The issue in this appeal is whether the appellants are entitled to remuneration as members of the House of Representatives on a delay in the House sitting after an election. . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Lists of cited by and citing cases may be incomplete.
Taxes Management
Updated: 01 November 2021; Ref: scu.651859
ECJ (Grand Chamber) Charter of Fundamental Rights of the European Union – Field of application – Article 51 – Implementation of European Union law – Punishment of conduct prejudicial to own resources of the European Union – Article 50 – Ne bis in idem principle – National system involving two separate sets of proceedings, administrative and criminal, to punish the same wrongful conduct – Compatibility
V Skouris, P
C-617/10, [2013] EUECJ C-617/10, 15 ITL Rep 698, [2013] 2 CMLR 46, [2013] STC 1905
Bailii
Charter of Fundamental Rights of the European Union 51, European Convention on Human Rights P7
European, Human Rights, Crime, Taxes Management
Leading Case
Updated: 01 November 2021; Ref: scu.471209
FTTTx Partnership return, section 12AA Taxes Management Act 1970 (‘TMA’) – late filing penalty, section 93A TMA – filing paper return after both paper and electronic deadline – failure of HMRC to provide free software for electronic filing of partnership return – appeal dismissed.
[2010] UKFTT 539 (TC)
Bailii
Taxes Management Act 1970 93A
England and Wales
Taxes Management
Updated: 01 November 2021; Ref: scu.426661
(Hong Kong Final Court of Appeal) The court was asked as to the accounting treatment of interests incurred in the development for the purpose of generating the profits, and therefore whether the relevant Ordinance prohibited the capitalisation of interest for the purpose of computing the taxpayer’s assessable profits and allowable deductions.
Held: Where schemes involve intermediate transactions inserted for the sole purpose of tax avoidance, it is quite likely that a purposive interpretation will result in such steps being disregarded for fiscal purposes. But not always.
The resolution of that question depended on the proper accountancy treatment of capitalised interest.
Ribeiro PJ said: ‘The . . preferable, view is that the Ramsay principle does not espouse any specialised principle of statutory construction applicable to tax legislation, whatever its language, but continues to assert the need to apply orthodox methods of purposive interpretation to the facts viewed realistically. In common with Lord Hoffman in MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd [2003] 1 AC 311 . . I am of the view that Lord Brightman’s formulation in not a principle of construction, but, as stated above, a decision that the Court is entitled, for fiscal purposes, to disregard intermediate steps having no commercial purpose as a consequence of an orthodox exercise of purposive statutory construction.’ and ‘Accordingly, the driving principle in the Ramsay line of cases continues to involve a general rule of statutory construction and an unblinkered approach to the analysis of the facts. The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.’
Lord Millett NPJ said: ‘Both profits and losses therefore must be ascertained in accordance with the ordinary principles of commercial accounting as modified to conform with the Ordinance. Where the taxpayer’s financial statements are correctly drawn in accordance with the ordinary principles of commercial accounting and in conformity with the Ordinance, no further modifications are required or permitted. Where the taxpayer may properly draw its financial statements on either of two alternative bases, the Commissioner is both entitled and bound to ascertain the assessable profits on whichever basis the taxpayer has chosen to adopt. He is bound to do so because he has no power to alter the basis on which the taxpayer has drawn its financial statements unless it is inconsistent with a provision of the Ordinance. But he is also entitled to do so, with the result that the taxpayer is effectively bound by its own choice, not because of any estoppel, but because it is the Commissioner’s function to make the assessment and for the taxpayer to show that it is wrong.’ and . .
‘the subject is to be taxed by the legislature and not by the courts’.
Ribeiro PJ, Lord Millett NPJ
(2003) 6 ITLR 454, [2003] HKCFA 52, [2004] 1 HKLRD 77, (2003) 6 HKCFAR 517, ACV 4/2003
Hklii
England and Wales
Citing:
Restated – W T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
Cited – MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL 15-Feb-2001
The fact that a payment of interest was made only to create a tax advantage did not prevent its being properly claimed. Interest was paid for the purposes of setting it against tax, when the debt was discharged. A company with substantial losses had . .
Cited by:
Cited – Barclays Mercantile Business Finance Ltd v Mawson (HM Inspector of Taxes) HL 25-Nov-2004
The company had paid substantial sums out in establishing a gas pipeline, and claimed those sums against its tax as capital allowances. The transaction involved a sale and leaseback arrangement which the special commissioners had found to be a . .
Cited – Campbell v Inland Revenue Commissioners SCIT 6-Jul-2004
SCIT INCOME TAX – Anti-Avoidance – Relevant discounted security – Loss on gift to wife – Subscription for security and gift part of scheme to produce loss – Avoidance not the Appellant’s sole purpose in . .
Cited – UBS Ag and Another v Revenue and Customs SC 9-Mar-2016
UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Lists of cited by and citing cases may be incomplete.
International, Taxes Management, Stamp Duty
Leading Case
Updated: 01 November 2021; Ref: scu.220504
The court was asked whether the appellant taxpayer, Mr Hargreaves, has the right to require the respondent to establish, at a separate preliminary hearing prior to the hearing of his appeal against a ‘discovery’ assessment made under section 29 of the 1970 Act, the matters which under that section HMRC must establish to show that the DA was validly made.
Arden, Underhill, Sales LJJ
[2016] EWCA Civ 174, [2016] WLR(D) 162
Bailii, WLRD
Taxes Management Act 1970 29
England and Wales
Taxes Management
Updated: 01 November 2021; Ref: scu.561209
‘This appeal is concerned with a tax avoidance scheme called Project Zephyr. The object of this scheme was to create a loss of around 84 million Euros in the hands of the appellant (‘Fidex’) which would be available for group relief throughout the BNP Paribas group of companies of which Fidex forms a part.’
Arden, Kitchin, LJJ, Sir Stephen Richards
[2016] EWCA Civ 385, [2016] STC 1920, [2016] BTC 16, [2016] 4 All ER 1063
Bailii
Finance Act 1996
England and Wales
Citing:
At FTTX – Fidex Ltd v Revenue and Customs FTTTx 2-Apr-2013
FTTTx CORPORATION TAX – loan relationships – debit under paragraph 19A, Schedule 9, Finance Act 1996 in respect of the difference in the accounting value of loan relationships on a change of accounting practice – . .
Appeal from – Fidex Limited v Revenue and Customs UTTC 13-Nov-2014
Procedure – appeal against closure notice – reliance on grounds for amendment not stated in closure notice – Tower McCashback considered Corporation tax – loan relationships – application of paragraph 13 Sch9 FA 1996 to debit arising under para19A . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, Corporation Tax
Updated: 01 November 2021; Ref: scu.562450
FTTTx Penalty; late payment; fairness; Jussila v Finland. ‘Reasonable excuse’. Honest and genuine belief amounts to ‘reasonable excuse’. Honest belief – test – purely subjective. Even an objectively unreasonable or irrational belief, if honestly held, suffices for a reasonable excuse. Dicta to the contrary in Intelligent Management UK Ltd v HMRC [2011] UKFTT 704 (TC) not followed.
Geraint Jones QC
[2012] UKFTT 397 (TC)
Bailii
England and Wales
Citing:
Cited – Jussila v Finland ECHR 23-Nov-2006
(Grand Chamber) The applicant alleged that he did not receive a fair hearing in the proceedings in which a tax surcharge was imposed as he was not given an oral hearing. . .
Not Followed – Intelligent Management UK Ltd v Revenue and Customs FTTTx 2-Nov-2011
FTTTx P35 return-Penalty for late return (Taxes Management Act 1970 s.98A)-Reasonable excuse-Appeal dismissed . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, Human Rights
Updated: 01 November 2021; Ref: scu.462784
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. The privilege given under the Act by virtue of the Morgan Grenfell decision was limited to legal advice given by lawyers. The link between legal advice privilege and members of the legal profession is a natural one and part of the inter-relationship of a lawyer’s professional duties, including a lawyer’s duties to the court, and the administration of justice. Legal advice privilege does not extend to advice given by accountants on tax law in circumstances, such as the present, where if the accountant had been a solicitor the claim to Legal Professional Privilege would not be one based on litigation privilege.
Charles J said: ‘[there is] a compelling, and indeed unanswerable, case that in modern conditions accountants have the expertise to advise on tax law and it is firms of accountants, rather than firms of solicitors, who do give such advice and represent clients in disputes with the revenue on many aspects of their tax affairs. Further many firms of accountants now employ lawyers to advise on tax and what they, and qualified accountants in the same firm, do in this context is the same . . So, in my view, [it has been] shown that accountants do what lawyers are described as doing in the cases that establish [LAP]. This has been the case for some time and in my view an equivalent position can be said to exist in respect of other professions.’
Charles J
[2009] EWHC 2494 (Admin), [2009] STI 2770, [2009] BTC 680, [2010] ACD 10, [2010] STC 161, [2010] 1 All ER 1113, [2009] NPC 113
Times, Bailii
Taxes Management Act 1970
England and Wales
Citing:
Cited – Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – Wilden Pump Engineering Co v Fusfeld CA 1985
The 1977 Act conferred privilege on any communication involving patent attorneys made for the purpose of proceedings before the Comptroller of Patents or the Patents Appeal Tribunal. The defendants claimed privilege for all communications with their . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Bolton v Liverpool Corporation HL 1833
The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
Cited – Moseley v The Victoria Rubber Co ChD 1886
There is no general professional privilege covering communications between a person and his patent agent. Communications between a client and his solicitor who was also the client’s patent attorney were not privileged if the solicitor received them . .
mentioned – Andre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Cited – New Victoria Hospital v Ryan EAT 3-Feb-1993
Privilege from disclosure is only to attach to ‘qualified legal advisers’.
Tucker J referred in an obiter passage to advisers ‘such as solicitors or counsel’, and thus it was said that he was not seeking to limit legal professional privilege . .
Cited – Minter v Priest CA 1929
An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to . .
Cited – Mfongbong Umoh, Regina v 1987
. .
Cited – M and W Grazebrook Ltd v Wallens 1973
Communications between the client and his non-lawyer representative, and communications between that representative and third party witnesses, are privileged despite the fact that the representative may have no professional qualification. Sir John . .
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Cited – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners CA 1972
Legal advice given by employed lawyers to their employers, rather than lawyers in independent practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a . .
Cited – Chantry Martin v Martin CA 1953
The court was asked as to working papers brought into existence by chartered accountants in the preparation of an audit of a client’s books.
Held: Those working papers were the property of the chartered accountants and not the client. Jenkins . .
Cited – Calley v Richards CA 8-Jul-1854
Communications between a person and his legal adviser, who had been a solicitor, but at the time of the communications had, without his knowledge ceased to practise, are privileged. The communication had reference to the validity of a will, and . .
Cited – Fountain, Administrator of Crump, v Young, 28-Nov-1807
If the client mistakenly thinks the person he is obtaining legal advice from is a lawyer but the person is not in fact a lawyer then no privilege attaches . .
Cited – Regina v Commissioners of Inland Revenue, Ex Parte Tamosius and Partners QBD 10-Nov-1999
Officers executing a search warrant under the Taxes Management section could properly have accompany them, a legally qualified person who could make immediate assessments of any claim for protection for materials at the property searched by way of . .
Cited by:
Appeal from – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
At First Instance – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, Legal Professions
Updated: 01 November 2021; Ref: scu.376144
The appellant challenged the appointment of a receiver in respect of property registered in his name, but said to be the realisable property of a man convicted of cheating the revenue. He said that he had funded the property, and that he had not been given appropriate opportunity to become involved in the earlier proceedings.
Held: The appeal failed. The claimant had been given opportunity to make his case. As to whether a restraint order or a management receivership order may be made over property on the ground the court said that it is ‘realisable property’ even in advance of a confiscation order, simply on the basis that there is a good arguable case that the property in question is realisable property: ‘once a confiscation order has been made against a defendant in respect of the value of identified realisable property, it is possible to speak of such property as being realisable property (as it has been adjudicated to be as between the RCPO and the defendant) even though it is still open for third parties to vindicate their own interests in such property by proving that it is not realisable property or that the defendant’s interest in it is less than total. And . . for either or both of those reasons, on the facts of this case, there was undoubtedly jurisdiction . . to make a management receivership order.’
It was not possible to say that the claimant’s interests would not be protected by the receivership, save as to the issue of costs which remained undecided, though a special term as to the costs might be available.
Waller LJ, Rix LJ, Wilson LJ
[2010] EWCA Civ 285, [2010] STC 1190, [2010] STI 797, [2010] CP Rep 31, [2010] Lloyd’s Rep FC 405
Bailii
Criminal Justice Act 1988 77(8)
England and Wales
Citing:
Cited – In re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
Cited – Crown Prosecution Service v Compton, Comptons of Brighton Limited, Coyne, Compton CA 27-Nov-2002
Appeal against refusal of restraint order.
Held: It is enough that on the documents a good arguable case arises for treating the relevant assets as the realisable property of the defendant.
Lord Justice Simon Brown said: ‘All that I . .
Cited – Capewell v Commissioners for HM Customs and Excise and Sinclair CA 2-Dec-2004
The court approved guidelines for the appointment and remuneration of a receiver appointed under the 1988 Act. . .
Cited – Sinclair In her Capacity As the Former Receiver v Glatt Executors of Estate of Glatt and Glatt and Glatt CA 13-Mar-2009
The court considered the recovery of expenses by a receiver appointed to administer assets of money launderer. The receiver sought to exercise a lien over assets held for the prisoner by the prison to recover the costs of the receivership after the . .
Cited – Capewell v Revenue and Customs and Another HL 31-Jan-2007
The defendant appealed against an order regarding the remuneration of a receiver appointed to administer a restraint order placed on the assets of the defendant under the 1988 Act on the basis of an allegation that the defendant had been involved in . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Taxes Management
Updated: 01 November 2021; Ref: scu.403354
UTTC INCOME TAX – discovery assessment – TMA s 29 – taxpayer setting capital losses against income – workings sent with return but net figures entered on return – First-tier Tribunal’s finding that taxpayer negligent – whether finding of fact – yes – whether susceptible of challenge in Upper Tribunal – appeal dismissed.
Bishopp J
[2011] BTC 1793, [2011] STC 1784, [2011] UKUT 239 (TCC)
Bailii
England and Wales
Taxes Management
Updated: 01 November 2021; Ref: scu.441763
The taxpayer imported swimwear for sale. The respondent had incorrectly indicated that such swimwear had one classification. The claimant sought to prevent the respondent reclassifying the goods, saying that they had made given binding tariff information. It depended on the proportion of rubber in the suits. The respondent viewed the calculation differently.
Held: the commissioners were not prevented by estoppel or abuse from retaining the monetary difference between the correct higher rates paid and the sums which would have been due under the original lower classification.
The Binding Tariff Information system could only apply to goods of the precise description applied. It could not apply to different but similar lines: ‘A Regulation is legislative in character and of general application. A BTI is specific to an individual and can only be relied upon by the holder in respect of goods corresponding in every respect with those described in it. Regulation 651/2007 does not contain the limiting provisions as to its application specified by the Code in respect of BTIs.’ A tribunal’s decision on a rate of tax for one year is not binding for subsequent years, but where a court has settled an issue of fact as between parties, they are estopped from later arguing inconsistently. A tribunal determining a rate of applicable tax is not so bound.
Christopher Clarke J
[2009] EWHC 2046 (Ch), Times 21-Oct-2009, [2010] Bus LR D25, [2009] STC 2638
Bailii
Council Regulation 2913/92
England and Wales
Citing:
Cited – Vtech Electronics (UK) Plc v The Commissioners of Customs and Excise ChD 29-Jan-2003
. .
Cited – Krings GmbH v Oberfinanzdirektion Nurnberg ECJ 4-Mar-2004
Europa Common Customs Tariff – Combined Nomenclature – Tariff heading – Preparation with a basis of extract of tea. . .
Cited – Caffoor v Columbo Income Tax Commissioner PC 1961
Taxation and rating decisions are sui generis. Lord Radcliffe said: ‘The critical thing is that the dispute which alone can be determined by any decision given in the course of these proceedings is limited to one subject only, the amount of the . .
Cited – Broken Hill Pty Co Ltd v Broken Hill Municipal Council PC 10-Nov-1925
A decision of the High Court of Australia on the construction of a section of a statute dealing with rating value did not estop the parties from relitigating the issue on a subsequent year’s assessment. . .
Cited – Society of Medical Officers of Health v Hope HL 1960
A local valuation court had decided in 1951 that the Society’s land was exempt from rates under section 1 of the 1843 Act. The exemption was conditional on certain facts relating to the Society and its purpose in occupying the building. In 1956 the . .
Cited – Commissioners of Customs and Excise v DFS Furniture Company Plc CA 6-Dec-2002
. .
Cited – Specialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
Cited – Hoysted v Federal Taxation Commissioner PC 1926
An implied decision of the High Court on the true construction of a will estopped the parties from contending for a different construction relating to a later year’s assessment. . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – In re Vandervell’s Trusts (No 1); Vandervell Trustees Limited v White and Others HL 15-Jul-1970
Practice – Parties – Joinder – Proceedings between subjects raising issues material to income tax – Joinder of Commissioners of Inland Revenue – Income Tax Act 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c.10), ss. 52 and 64 ; Income Tax Management Act . .
Lists of cited by and citing cases may be incomplete.
Customs and Excise, Taxes Management, Estoppel, European
Updated: 01 November 2021; Ref: scu.371884
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the company’s undertaking in India.
Held: The claim was not maintainable because it was a claim by the Government of India to recover tax. English law generally does not permit either the direct or indirect enforcement of foreign revenue laws. The House considered two explanations of this rule.
Lord Keith of Avenholm said: ‘One explanation of the rule thus illustrated may be thought to be that enforcement of a claim for taxes is but an extension of the sovereign power which imposed the taxes, and that an assertion of sovereign authority by one State within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties. Another explanation has been given by an eminent American judge, Judge Learned Hand, in the case of Moore v Mitchell, in a passage, quoted also by Kingsmill Moore J. in the case of Peter Buchanan Ltd as follows: ‘While the origin of the exception in the case of penal liabilities does not appear in the books, a sound basis for it exists, in my judgment, which includes liabilities for taxes as well. Even in the case of ordinary municipal liabilities, a court will not recognize those arising in a foreign State, if they run counter to the ‘settled public policy’ of its own. Thus a scrutiny of the liability is necessarily always in reserve, and the possibility that it will be found not to accord with the policy of the domestic State. This is not a troublesome or delicate inquiry when the question arises between private persons, but it takes on quite another face when it concerns the relations between the foreign State and its own citizens or even those who may be temporarily within its borders. To pass upon the provisions for the public order of another State is, or at any rate should be, beyond the powers of the court; it involves the relations between the States themselves, with which courts are incompetent to deal, and which are entrusted to other authorities. It may commit the domestic State to a position which would seriously embarrass its neighbour. Revenue laws fall within the same reasoning; they affect a State in matters as vital to its existence as its criminal laws. No court ought to undertake an inquiry which it cannot prosecute without determining whether those laws are consonant with its own notions of what is proper.’
Viscount Simonds stated the duty of a liquidator in assessing a proof of debt: ‘I conceive that it is the duty of the liquidator to discharge out of the assets in his hands those claims which are legally enforceable, and to hand over any surplus to the contributories. I find no words which vest in him a discretion to meet claims which are not legally enforceable. It will be remembered that, so far as is relevant for this purpose, the law is the same whether the winding up is voluntary or by the court, whether the company is solvent or insolvent, and that an additional purpose of a winding up is to secure that creditors who have enforceable claims shall be treated equally, subject only to the priorities for which the statute provides.’
Lord Keith of Avonholm, Viscount Simonds
[1955] AC 491, [1955] 1 All ER 292, (1955) 27 ITR 356
England and Wales
Citing:
Approved – Peter Buchanan Limited and Macharg v McVey 1954
(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The . .
Cited – King of the Hellenes v Brostrom 1923
Rowlatt J said: ‘It is perfectly elementary that a foreign government cannot come here — nor will the courts of other countries allow our government to go there — and sue a person found in that jurisdiction for taxes levied and which he is . .
Cited by:
Cited – QRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
Approved – In re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
Cited – Williams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd HL 1986
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Cited – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, International, Insolvency
Leading Case
Updated: 01 November 2021; Ref: scu.225456
Although transactions were integrated as part of a preconceived scheme which was commercially marketed and that had no other conceivable purpose than that of saving surtax, the construction of the statute compelled the acceptance of a fiscal result which accorded very ill with the true ‘substance’ of the transactions taken as a whole. There was nothing illegal about the scheme and it was entitled to a fair, if not necessarily benevolent, consideration by the court. Purchased annuities are in principle captured by schedule D of the Income Tax Acts. Lord Wilberforce considered it was not possible to read into the definition an exception in favour of commercial transactions but that it was necessary to consider the scope of the words of the definition: ‘If it appears, on the one hand, that a completely literal reading of the relevant words would so widely extend the reach of the section that no agreement of whatever character fell outside it, but that, on the other hand, a legislative purpose may be discerned, of a more limited character, which Parliament can reasonably be supposed to have intended, and that the words used fairly admit of such a meaning as to give effect to that purpose, it would be legitimate, indeed necessary, for the courts to adopt such meaning.’ and ‘. . . it can, I think, fairly be seen that all of these provisions…have a common character. They are designed to bring within the net of taxation dispositions of various kinds, in favour of a settlor’s spouse, or children, or of charities, cases, in popular terminology, in which a taxpayer gives away a portion of his income, or of his assets, to such persons, or for such periods, or subject to such conditions, that Parliament considers it right to continue to treat such income, or income of the assets, as still the settlor’s income. These sections, in other words, though drafted in wide, and increasingly wider language, are nevertheless dealing with a limited field – one far narrower than the field of the totality of dispositions, or arrangements, or agreements, which a man may make in the course of his life. Is there then any common description which can be applied to this.’ As to Bulmer v IRC: ‘My Lords, I think that in doing so the learned judge was well within the limits of permissible interpretation, and that with the ‘element of bounty’ test we have a definition which is in agreement with the intention of Parliament as revealed through the whole miniature code . . .’
Lord Fraser of Tullybelton said that the definition of settlement applied only where there was an element of bounty because the word ‘settlement’, even allowing for its extended definition was used throughout the relevant Part ‘with a flavour of donation or bounty’.
Lord Wilberforce, Lord Fraser of Tullybelton
[1979] 3 All ER 775, [1980] AC 896, [1979] UKHL TC – 54 – 1, [1979] STC 793, [1979] TR 339, [1979] 3 WLR 689, 54 TC 1
Bailii
England and Wales
Citing:
Cited – Bulmer v Inland Revenue Commissioners 1967
Shareholders fearing a takeover sold their shares to another company’s subsidiary at below market value, the balance of value outstanding on an interest free loan. A commercial loan was used to buy further shares. When the loan was fully repaid the . .
Cited by:
Applied – W T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
Cited – Commissioners of Inland Revenue v McGuckian HL 21-May-1997
Steps which had been inserted into a commercial transaction, but which had no purpose other than the saving of tax are to be disregarded when assessing the tax effect of the scheme. The modern approach to statutory construction is to have regard to . .
Cited – Jones v Michael Vincent Garnett (HM Inspector of Taxes) CA 15-Dec-2005
Husband and wife had been shareholders in a company, the wife being recorded as company secretary. The company paid dividenceds to both. The husband appealed a decision that the payment to his wife was by way of a settlement and was taxable in his . .
Cited – Chinn v Hochstrasser (Inspector of Taxes) HL 11-Dec-1980
The House considered the meaning of the word ‘bounty’ in an income tax context, where it had been used by the courts: ‘My Lords, I would venture to point out that the word ‘bounty’ appears nowhere in the statute. It is a judicial gloss upon the . .
Cited – Jones v Garnett (Her Majesty’s Inspector of Taxes) HL 25-Jul-2007
The husband and wife had each owned a share in a company which sold the services of the husband. The Revenue claimed that the payment of dividends to the wife was a settlement.
Held: The Revenue failed. The share had been transferred to the . .
Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Criticised – Plummer v Inland Revenue Commissioners ChD 1987
The taxpayer had a domicile of origin in England but her family had moved to Guernsey. She remained in England principally for the purpose of completing her education. She intended when she had finished her training and had some experience working . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, Income Tax
Leading Case
Updated: 01 November 2021; Ref: scu.181332
FTTTx Procedure – application for permission to appeal out of time – whether appellant believed valid appeal had been made – appellant not appealing to tribunal due to insufficiency of funds to obtain legal representation – whether appellant not aware of time limits.
[2010] UKFTT 374 (TC)
Bailii
England and Wales
Taxes Management
Updated: 01 November 2021; Ref: scu.422356
SCIT Appeal against penalty determination – alleged inconsistency between the Appellant’s penalty and certain others recently publicised – other issues raised at the hearing – Appeal Dismissed.
[2008] UKSPC SPC00697
Bailii
England and Wales
Taxes Management
Updated: 01 November 2021; Ref: scu.273108
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that the trust was resident in the UK.
Held: The appeal suceeded (Patten LJ dissenting in part). The judge had erred in applying the test of residence only as at the date of the disposal in issue. The phrase ‘resident in a contracting state’ should be read as ‘chargeable to to tax in that state on account of residence’ which would allow consideration also of subsequent actions and events. The relevant place of effective management was that of the trustees as a contuing body, and on the facts the SPCT had been entitled to conclude that it was in the UK.
Ward, Hughes, Patten LJJ
[2010] EWCA Civ 778, [2010] WLR (D) 177, [2010] STI 2174, 12 ITL Rep 1002, [2010] BTC 637, [2010] STC 2045, (2010) 80 TC 536
Bailii, WLRD
Taxation of Chargeable Gains Act 1992 277, Double Taxation Relief (Taxes on Income) (Mauritius) Order 1981 (SI 1121/1981) Sch 1 4(1)(3) 13(4)
England and Wales
Citing:
At SPCT – Trevor Smallwood Trust v Revenue and Customs SCIT 19-Feb-2008
SCIT CAPITAL GAINS TAX – double taxation relief – trust assets included shares which would realise a gain on disposal – UK settlor had power to appoint new trustees – tax planning scheme – new trustees in . .
Appeal from – Smallwood v Revenue and Customs ChD 8-Apr-2009
The taxpayer had settled company shares for the benefit of himself and his family. He appealed from an amendment to his tax returns creating a CGT liability of 6 million pounds.
Held: The appeal was successful. . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – De Beers Consolidated Mines Ltd v Howe, Surveyor of Taxes HL 1905
The appellant Company was registered in the Cape Colony and it’s business was mining for diamonds in mines which it possessed in South Africa, and selling the diamonds there under annual contracts to a syndicate for delivery there. The Head Office . .
Cited – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .
Cited – Wood and Another v Holden (HMIT) CA 26-Jan-2006
Husband and wife sold their business, arranging matters so as to avoid paying Capital Gains Tax by transferring their interest between members of a group of companies which was non-resident.
Held: The scheme was effective. The sole real issue . .
Cited – Wensleydale’s Settlement Trustees v Inland Revenue Commissioners SCIT 1996
The test for where a trust has its tax residence is the place which is the centre of top-level management. . .
Cited – Inland Revenue Commissioners v Commerzbank AG ChD 1990
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited by:
Cited – Fowler v Revenue and Customs SC 20-May-2020
The taxpayer, a diver resident in South Africa had undertaken engagements within UK waters and now disputed his liability to Income Tax using a deeming provision in section 5 of the 2005 Act being self employed.
Held: HMRC’s appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.
Capital Gains Tax, Taxes Management
Updated: 31 October 2021; Ref: scu.420403
FTTtx INCOME TAX – whether interest earned on joint account in names of taxpayer and family members all properly to be assessed on taxpayer alone as the provider of the funds -yes; resulting trust; settlements legislation; s.29 TMA 1970 – out of time assessments set aside; penalties inappropriate- no negligence.
Hacking TJ
[2013] UKFTT 110 (TC)
Bailii
Taxes Management Act 1970 29
England and Wales
Taxes Management, Trusts, Income Tax
Updated: 31 October 2021; Ref: scu.472332
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these were withheld on the ground of Crown privilege. The House considered that claim as to civil actions of documents and information in the hands of the police.
Held: The courts will give great weight to preserving the confidentiality of tax documents in the hands of the Revenue.
Lord Reid said: ‘The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities.’ However: ‘I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a Minister’s view: full weight must be given to it in every case, and if the Minister’s reasons are of a character which judicial experience is not competent to weigh, then the Minister’s view must prevail. But experience has shown that reasons given for withholding whole classes of documents are often not of that character. For example a court is perfectly well able to assess the likelihood that, if the writer of a certain class of document knew that there was a chance that his report might be produced in legal proceedings, he would make a less full and candid report than he would otherwise have done. I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism.’
As to the different positions of the law in Scotland and England, Lord Reid said: ‘But here we are dealing purely with public policy – with the proper relation between the powers of the executive and the powers of the courts – and I can see no rational justification for the law on this matter being different in the two countries.’
Lord Reid Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce, Lord Upjohn
[1968] AC 910, [1968] 2 WLR 998, [1968] 1 All ER 874, [1968] UKHL 2
Bailii
England and Wales
Citing:
Cited – Duncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
Cited – Mackalley’s case 1611
If an officer or magistrate is killed when executing a process or preserving the peace, the offence is murder and remains so even if there is some defect in the process being executed, or the arrest was being made at night.
Constables were . .
Cited – Fisher v Oldham Corporation KBD 1930
On Officer was subject to a claim for false imprisonment on an unlawful arrest, and it was asserted that the Watch Committee of the local authority were vicariously liable. The plaintiff pointed to his Oath of Office: ‘I . . . . . . . . . of . . . . . .
Cited by:
Cited – Lonrho Plc v Fayed and Others (No 4 ) CA 27-Oct-1993
Public interest immunity does not attach to documents in the hands of a taxpayer and his advisers. They are not in any event discloseable. (Bingham) ‘a claim made by the revenue to withhold documents relating to a taxpayer’s tax affairs from . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – Arias and Others v Commissioner for the Metropolitan Police and Another CA 1-Aug-1984
A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence . .
Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Cited – Regina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, Constitutional, Police, Litigation Practice
Leading Case
Updated: 31 October 2021; Ref: scu.184570
UTTC CAPITAL GAINS TAX – validity of a ‘discovery’ assessment under section 29(1) of the Taxes Management Act 1970 – whether a ‘discovery’ – whether conditions of section 29(4) and (5) of the Act satisfied
Newey J
[2013] UKUT 623 (TCC), [2014] STC 915, [2014] STI 433, [2014] BTC 502
Bailii
Taxes Management Act 1970
England and Wales
Capital Gains Tax, Taxes Management
Updated: 31 October 2021; Ref: scu.521029
The taxpayer appealed an order for payment of arrears of schedule D tax and national insurance contributions in enforcement proceedings in the County Court.
Held: The proper forum for appealing against determinations was the general commissioners whose jurisdiction was exclusive. The County Court had no jurisdiction whatsoever.
Waller LJ, Jonathan Parker LJ
[2004] EWCA Civ 889, Times 09-Aug-2004
Bailii
Taxes Management Act 1970 56
England and Wales
Income Tax, Taxes Management
Leading Case
Updated: 31 October 2021; Ref: scu.199589
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. The Society sought to challenge the decision by judicial review.
Held: At common law taxes exacted ultra vires were recoverable as of right, without the need to invoke a mistake of law by the payer. ‘The justice underlying Woolwich’s submission is, I consider, plain to see. Take the present case. The revenue has made an unlawful demand for tax. The taxpayer is convinced that the demand is unlawful, and has to decide what to do. It is faced with the revenue, armed with the coercive power of the state, including what is in practice a power to charge interest which is penal in its effect. In addition, being a reputable society which alone among many building societies is challenging the lawfulness of the demand, it understandably fears damage to its reputation if it does not pay. So it decides to pay first, asserting that it will challenge the lawfulness of the demand in litigation. Now, Woolwich having won that litigation, the revenue asserts that it was never under any obligation to repay the money, and that it in fact repaid it only as a matter of grace. There being no applicable statute to regulate the position, the revenue has to maintain this position at common law. Stated in this stark form, the revenue’s position appears to me, as a matter of common justice, to be unsustainable; and the injustice is rendered worse by the fact that it involves, as Nolan J. pointed out [1989] 1 W.L.R. 137, 140, the revenue having the benefit of a massive interest-free loan as the fruit of its unlawful action. I turn then from the particular to the general. Take any tax or duty paid by the citizen pursuant to an unlawful demand. Common justice seems to require that tax be repaid, unless special circumstances or some principle of policy require otherwise; prima facie, the taxpayer should be entitled to repayment as of right.’ and ‘the retention by the state of taxes unlawfully exacted is particularly obnoxious, because it is one of the most fundamental principles of our law – enshrined in a famous constitutional document, the Bill of Rights 1688 – that taxes should not be levied without the authority of Parliament; and full effect can only be given to that principle if the return of taxes exacted under an unlawful demand can be enforced as a matter of right. The second is that, when the revenue makes a demand for tax, that demand is implicitly backed by the coercive powers of the state and may well entail (as in the present case) unpleasant economic and social consequences if the taxpayer does not pay. In any event, it seems strange to penalise the good citizen, whose natural instinct is to trust the revenue and pay taxes when they are demanded of him.’
Lord Slynn observed: ‘I do not consider that the fact that Parliament has legislated extensively in this area means that no principle of recovery at common law can or should at this stage of the development of the law be found to exist. If the principle does exist that tax paid on a demand from the Crown when the tax was the subject of an ultra vires demand can be recovered as money had and received then, in my view, it is for the courts to declare it. In so doing they do not usurp the legislative function. I regard the proper approach as the converse. If the legislature finds that limitations on the common law principle are needed for reasons of policy or good administration then they can be adopted by legislation . .’
Lord Goff considered whether, by changing the common law judges would be overstepping the boundary which separates legitimate development of the law from judicial legislation said: ‘I feel bound however to say that, although I am well aware of the existence of the boundary, I am never quite sure where to find it. Its position seems to vary from case to case. Indeed, if it were to be as firmly and clearly drawn as some of our mentors would wish, I cannot help feeling that a number of leading cases in your Lordships’ House would never have been decided the way they were.’
HL The English law of restitution has set its face against the development of any general principle, such as is known to civil law systems, of a condictio indebiti, an action for the recovery of money on the ground that it was not due. Lord Goff of Chieveley said: ‘To the simple call of justice, there are a number of possible objections. The first is to be found in the structure of our law of restitution, as it developed during the 19th and early 20th centuries. That law might have developed so as to recognise a condictio indebiti – an action for the recovery of money on the ground that it was not due. But it did not do so. Instead, as we have seen, there developed common law actions for the recovery of money paid under a mistake of fact, and under certain forms of compulsion.’
Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Slynn of Hadley; Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting
[1993] AC 70, [1992] 3 All ER 737, (1992) 3 WLR 366, [1992] UKHL TC – 65 – 265, (1993) 5 Admin LR 265, [1992] STC 657
Bailii
Taxes Management Act 1970 33, Bill of Rights 1688, Income Tax (Building Societies) Regulations 1986
England and Wales
Citing:
See Also – Regina v Inland Revenue Commissioners, Ex parte Woolwich Equitable Building Society HL 25-Oct-1990
The society challenged the validity of transitional provisions in the 1986 regulations on the ground that they were ultra vires. The House considered the specific presumption against double taxation, and also a power in general terms to make . .
Cited – Bilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .
Cited – Maskell v Horner CA 1915
Money paid as a result of actual or threatened seizure of a person’s goods, is recoverable where there has been an error, even if it was one of law. . .
Cited by:
Cited – Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005
The company sought repayment of excess advance corporation tax payments made under a mistake of law. The question was the extent of the effect of the ruling in Klienwort Benson, in particular whether it covered sums paid as taxation, and how the law . .
See Also – Regina v Inland Revenue Commissioners, Ex parte Woolwich Equitable Building Society HL 25-Oct-1990
The society challenged the validity of transitional provisions in the 1986 regulations on the ground that they were ultra vires. The House considered the specific presumption against double taxation, and also a power in general terms to make . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Child Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Marine Trade Sa v Pioneer Freight Futures Co Ltd Bvi and Another ComC 29-Oct-2009
The parties stood to make substantial losses against each other under contracts for differences after the dramatic fall in the freight market in the financial turmoil of late 2008. . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Lists of cited by and citing cases may be incomplete.
Taxes Management, Constitutional
Leading Case
Updated: 31 October 2021; Ref: scu.223218
UTTC Capital Gains Tax – whether discovery assessments valid – s 29, Taxes Management Act 1970 – meaning of ‘discovery’ – inference of information under s 29(6)(d)(i) – inclusion of DOTAS scheme reference number in return – whether an officer could not have been reasonably expected to be aware of an insufficiency of tax (s 29(5)) – nature of the hypothetical officer
[2012] UKUT 770 (TCC), [2013] STC 866, [2013] BTC 1634, [2013] STI 259
Bailii
Taxes Management Act 1970 29
England and Wales
Capital Gains Tax, Taxes Management
Updated: 31 October 2021; Ref: scu.468861
The company owed very substantial arrears of tax in South Africa. Assets had been transferred to a bank account in London in the name of an associated company. The double taxation treaty with South Africa now provided for mutlual assistance and the Revenue had sought access to the account for this purpose. The company appealed.
Jackson, Lloyd Jones, Dloyd LJJ
[2013] EWCA Civ 578
Bailii
England and Wales
Citing:
Cited – Inland Revenue Commissioners v Commerzbank AG ChD 1990
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in . .
Appeal from – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.510025
Late payment surcharge – Whether reasonable excuse on the facts – No – Appeal dismissed – Section 59C Taxes Management Act 1970
[2011] UKFTT 389 (TC)
Bailii
Taxes Management Act 1970 59C
England and Wales
Updated: 30 October 2021; Ref: scu.443141
(1990) 62 TC 578
England and Wales
Cited by:
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.182248
PAYE – late submission of Employer’s Annual Return – whether penalty notice issued properly – no evidence produced, whether scale of penalty is reasonable , and whether penalty is unfair and should be reduced – Decision of Upper Tribunal in Hok Ltd applies. Whether reasonable excuse for late submission of return – Yes.
[2014] UKFTT 64 (TC)
Bailii
England and Wales
Updated: 27 October 2021; Ref: scu.521733
PENALTY – late submission of Employer’s Annual Return – whether a reasonable excuse has been shown for the late submission – on the evidence the employer tried unsuccessfully to submit a return on-line before the due date but was unaware that the attempt had been unsuccessful – the Tribunal accepted this as a reasonable excuse – appeal allowed
[2012] UKFTT 78 (TC)
Bailii
England and Wales
Updated: 27 October 2021; Ref: scu.450832
Penalty; late filing; fairness; s98A(2)(a) TMA 1970. Common law fairness. Conscionable conduct. Conspicuous unfairness. Oxfam (per Mr. Justice Sales) explained.
[2012] UKFTT 27 (TC)
Bailii
England and Wales
Updated: 27 October 2021; Ref: scu.450836
Penalty – late payment of PAYE and NICs (FA 2009 Sch 56) – Whether a reasonable excuse for late payment – No – Whether ‘special circumstances’ justifying a special reduction – No – Appeal dismissed
[2012] UKFTT 20 (TC)
Bailii
England and Wales
Updated: 27 October 2021; Ref: scu.450835
Appeal against penalty imposed for the late submission of the P35 -Appellant director admitted that he had forgotten to submit the return but claimed that HMRC should have sent a reminder much sooner because he was only reminded when he received the penalty notice-appeal dismissed as a result of the Appellant having no reasonable excuse for the late submission of the return
[2011] UKFTT 403 (TC)
Bailii
England and Wales
Updated: 27 October 2021; Ref: scu.443123
Income Tax – Discovery Assessments -‘s.29 (6) Taxes Management Act 1970 – Information made available by third party.
[2021] UKFTT 315 (TC)
Bailii
England and Wales
Updated: 27 October 2021; Ref: scu.667903
DOTAS regime – application under section 314A whether notifiable – yes – whether arrangements – yes- whether premium fee – yes -‘whether standardised tax product- yes- whether a loss scheme – yes
[2021] UKFTT 293 (TC)
Bailii
England and Wales
Updated: 26 October 2021; Ref: scu.667920
Late filing of partnership return – reasonable excuse – appeal dismissed
[2011] UKFTT 382 (TC)
Bailii
Updated: 26 October 2021; Ref: scu.443113
[2021] UKFTT 151 (TC)
Bailii
England and Wales
Updated: 26 October 2021; Ref: scu.663712
Construction Industry Scheme – withdrawal of gross payment status – Finance Act 2004 (Schedule 11) – Appeal against withdrawal – Reasonable excuse – Appeal Dismissed
[2011] UKFTT 405 (TC)
Bailii
England and Wales
Updated: 25 October 2021; Ref: scu.443103
Inaccuracy penalty – whether HMRC proved that due to Appellant’s deliberate behavior – no – HMRC disavowed case based on carelessness – appeal allowed
[2021] UKFTT 154 (TC)
Bailii
England and Wales
Updated: 25 October 2021; Ref: scu.663732
APPLICATION FOR HEARING IN PRIVATE – well-known taxpayer fearing adverse publicity – criteria to be applied – application refused
[2012] UKFTT 541 (TC), [2012] SFTD 1257, [2013] STI 65
Bailii
England and Wales
Updated: 22 October 2021; Ref: scu.466046
Late appeal to HMRC-HMRC objection to late appeal-whether Tribunal should give permission for a late appeal
[2021] UKFTT 90 (TC)
Bailii
England and Wales
Updated: 22 October 2021; Ref: scu.663654
Penalty ; Late filing; Onus of Proof. Jusilla v Finland. Article 6 ECHR.
[2011] UKFTT 432 (TC)
Bailii
England and Wales
Updated: 20 October 2021; Ref: scu.443114
[2021] UKFTT 295 (TC)
Bailii
England and Wales
Updated: 20 October 2021; Ref: scu.667918
Construction Industry Scheme – failure to make returns – whether penalties correctly charged – appeal allowed in part
[2012] UKFTT 322 (TC)
Bailii
England and Wales
Updated: 20 October 2021; Ref: scu.462587
[2020] UKFTT 327 (TC)
Bailii
England and Wales
Updated: 19 October 2021; Ref: scu.653161
Procedure – Appellant’s Application for Further and Better Particulars – Rule 5 – Observations on the role of HMRC’s Statement of Case – Application refused – HMRC’s application to strike out the Appeal – Rule 8(3) – Observations on the role of a witness statement – Application refused
[2020] UKFTT 328 (TC)
Bailii
England and Wales
Updated: 19 October 2021; Ref: scu.653163
Costs – Rule 10 – Appellant and Respondent Each Applying for A Costs Order on the basis of alleged unreasonable conduct – Appellant supplying evidence shortly before the hearing – In considering this evidence, HMRC withdrew its opposition to the appeal – Was HMRC’s conduct unreasonable – No – Was Appellant’s conduct unreasonable? – No – Appellant’s application for costs dismissed – HMRC’s application for costs dismissed.
[2020] UKFTT 240 (TC)
Bailii
England and Wales
Updated: 19 October 2021; Ref: scu.652273
Martland, Katib and BMW Shipping Agents considered – application allowed – application by HMRC for further and better particulars of the appellant’s grounds of appeal – Unicorn Shipping and Allpay considered – application allowed
[2021] UKFTT 152 (TC)
Bailii
England and Wales
Updated: 19 October 2021; Ref: scu.663718
Procedure : Disclosure – Application for Specific Disclosure
[2020] UKFTT 321 (TC)
Bailii
England and Wales
Updated: 17 October 2021; Ref: scu.653164
Information Notice – Schedule 36 Finance Act 2008 – whether information ‘reasonably required’ – burden of proof – business records found ‘incomplete’ and ‘unreliable’ – necessity for further information to establish alternative bases for checking tax position – validity of request for ‘personal records’ – whether joint-named accounts ‘third-party’ documents – the restriction criteria paras 18 and 19(3) of Sch 36 – Notice confirmed – appeal dismissed
[2020] UKFTT 258 (TC)
Bailii
England and Wales
Updated: 17 October 2021; Ref: scu.652284
English law generally does not permit either the direct or indirect enforcement of foreign revenue laws.
Tomlin J
[1928] 1 Ch 877
England and Wales
Cited by:
Cited – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.519310
Application for permission to appeal out of time by Appellant following the Respondent’s permission to appeal application being granted in full – Court of Appeal judgment in HMRC v SSE Generation Limited [2021] EWCA Civ 105 considered – Application granted
[2021] UKFTT 321 (TC)
Bailii
England and Wales
Updated: 17 October 2021; Ref: scu.667930
Length of delay is serious and significant – no good reason for delay – in all the circumstances, extension of time not justified – application refused
[2021] UKFTT 146 (TC)
Bailii
England and Wales
Updated: 17 October 2021; Ref: scu.663740
Balance of public interest and taxpayers’ interests, Application dismissed.
[2021] UKFTT 150 (TC)
Bailii
England and Wales
Updated: 17 October 2021; Ref: scu.663723
Strike out application under rule 8(8) Tribunal Procedure Rules for want of jurisdiction – application refused
[2021] UKFTT 95 (TC)
Bailii
England and Wales
Updated: 16 October 2021; Ref: scu.663675
PENALTIES – application to make a late appeal – reliance on an adviser – appeal dismissed
[2021] UKFTT 79 (TC)
Bailii
England and Wales
Updated: 16 October 2021; Ref: scu.663671
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in mind that ‘consideration of the purpose of an enactment is always a legitimate part of the process of interpretation’: per Lord Wilberforce and Lord Scarman. A strictly literal approach to interpretation is not appropriate in construing legislation which gives effect to or incorporates an international treaty: per Lord Fraser and Lord Scarman. A literal interpretation may be obviously inconsistent with the purposes of the particular article or of the treaty as a whole. If the provisions of a particular article are ambiguous, it may be possible to resolve that ambiguity by giving a purposive construction to the convention looking at it as a whole by reference to its language as set out in the relevant United Kingdom legislative instrument: per Lord Diplock.
(2) The process of interpretation should take account of the fact that – ‘The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament which deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Limited, [1987] AC 141 at 152, ‘unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation’: per Lord Diplock and Lord Scarman.
(3) Among those principles is the general principle of international law, now embodied in art 31(1) of the Vienna Convention on the Law of Treaties, that ‘a treaty should be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. A similar principle is expressed in slightly different terms in McNair’s The Law of Treaties (1961) p 365, where it is stated that the task of applying or construing or interpreting a treaty is ‘the duty of giving effect to the expressed intention of the parties, that is, their intention as expressed in the words used by them in the light of the surrounding circumstances’. It is also stated in that work that references to the primary necessity of giving effect to the ‘plain terms’ of a treaty or construing words according to their ‘general and ordinary meaning’ or their ‘natural signification’ are to be a starting point or prima facie guide and ‘cannot be allowed to obstruct the essential quest in the application of treaties, namely the search for the real intention of the contracting parties in using the language employed by them’.
(4) If the adoption of this approach to the article leaves the meaning of the relevant provision unclear or ambiguous or leads to a result which is manifestly absurd or unreasonable recourse may be had to ‘supplementary means of interpretation’ including travaux preparatoires: per Lord Diplock referring to art 32 of the Vienna Convention, which came into force after the conclusion of this double taxation convention, but codified an already existing principle of public international law. See also Lord Fraser and Lord Scarman.
(5) Subsequent commentaries on a convention or treaty have persuasive value only, depending on the cogency of their reasoning. Similarly, decisions of foreign courts on the interpretation of a convention or treaty text depend for their authority on the reputation and status of the court in question: per Lord Diplock and per Lord Scarman.
(6) Aids to the interpretation of a treaty such as travaux preparatoires, international case law and the writings of jurists are not a substitute for study of the terms of the convention. Their use is discretionary, not mandatory, depending, for example, on the relevance of such material and the weight to be attached to it: per Lord Scarman.’
Mummery J
[1990] STC 285
Civil Procedure Rules Part 36.21
England and Wales
Citing:
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Appeal from – Petrotrade Inc v Texaco Ltd CA 23-May-2000
Where a defendant failed to beat a claimant’s part 36 offer to settle, but judgment was given summarily the rule did not mean that the defendant was necessarily to be ordered to pay costs on an indemnity basis, and to pay interest. Summary judgment . .
Cited by:
Cited – Revenue and Customs v Smallwood and Another CA 8-Jul-2010
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that . .
Cited – Ben Nevis (Holdings) Ltd and Another v Revenue and Customs CA 23-May-2013
The company owed very substantial arrears of tax in South Africa. Assets had been transferred to a bank account in London in the name of an associated company. The double taxation treaty with South Africa now provided for mutlual assistance and the . .
Cited – Fowler v Revenue and Customs SC 20-May-2020
The taxpayer, a diver resident in South Africa had undertaken engagements within UK waters and now disputed his liability to Income Tax using a deeming provision in section 5 of the 2005 Act being self employed.
Held: HMRC’s appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.420677
The test for where a trust has its tax residence is the place which is the centre of top-level management.
Mr David Shirley
[1996] STC 241
Cited by:
Cited – Revenue and Customs v Smallwood and Another CA 8-Jul-2010
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.420678
Husband and wife sold their business, arranging matters so as to avoid paying Capital Gains Tax by transferring their interest between members of a group of companies which was non-resident.
Held: The scheme was effective. The sole real issue was whether the company was in fact non-resident. The correct test was the actual domiciliary status of the company. The directors in this case were non-resident, and were not bypassed in their decisions about the company.
[2006] EWCA Civ 26, Times 20-Feb-2006, 78 TC 1, [2006] STC 443, 8 ITL Rep 468, [2006] STI 236, [2006] 2 BCLC 210, [2006] 1 WLR 1393, [2006] BTC 208
Bailii
Taxes Management Act 1970 56A, Taxation of hargeable Gains Act 1992 13
England and Wales
Citing:
Appeal from – Wood v Holden (Inspector of Taxes) ChD 8-Apr-2005
The parties had entered into complex share transactions for the sale of their trading business, and sought to avoid liability for capital gains tax.
Held: Gains on disposals between members of a non-resident group of companies were exempt. The . .
Cited – De Beers Consolidated Mines Ltd v Howe, Surveyor of Taxes HL 1905
The appellant Company was registered in the Cape Colony and it’s business was mining for diamonds in mines which it possessed in South Africa, and selling the diamonds there under annual contracts to a syndicate for delivery there. The Head Office . .
Cited by:
Cited – Revenue and Customs v Smallwood and Another CA 8-Jul-2010
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.238136
Application for specific disclosure
[2021] UKFTT 212 (TC)
Bailii
England and Wales
Updated: 15 October 2021; Ref: scu.663758
Validity of notice of enquiry sent to Appellant c/o occupant of the registered office, and whether the subsequent closure notice was valid, where occupant also 64-8 agent. Notice of enquiry valid. Appealed dismissed.
[2021] UKFTT 148 (TC)
Bailii
England and Wales
Updated: 15 October 2021; Ref: scu.663736
[2021] UKFTT 77 (TC)
Bailii
England and Wales
Updated: 15 October 2021; Ref: scu.663658
Application for a stay of one issue in an appeal pending resolution of preliminary issues in another case by Upper Tribunal – Application granted in limited terms – stay on the legal aspects of the issue, but not on the facts and the evidence
[2021] UKFTT 218 (TC)
Bailii
England and Wales
Updated: 14 October 2021; Ref: scu.663752
Application by HMRC to admit new witness evidence and amend their statement of case – opposed by the appellant – application by the appellant to strike out those parts of HMRC’s case which relate to the appellant’s compliance history – opposed by HMRC – underlying appeal relates to review of decisions by HMRC to refuse end use authorization for importation of seven civil aircraft – ambit of s 16(4) FA 94 and UCC Article 211 reviewed – First De Sales Partnership, John Dee, Gora and Bezhad considered – HMRC application allowed – appellant’s application dismissed
[2021] UKFTT 215 (TC)
Bailii
England and Wales
Updated: 14 October 2021; Ref: scu.663751
Application for late appeal – assessment for income tax – HMRC refuse to accept late appeal – permission to appeal sought from Tribunal – no convincing grounds put forward by the appellant — leave to appeal refused – s 49 Taxes Management Act 1970
[2011] UKFTT 770 (TC)
Bailii
England and Wales
Updated: 12 October 2021; Ref: scu.450879
Section 98A (2) and (3) TMA 1970 – late submission of employer’s end of year return – parish clerk thought return had been submitted – whether reasonable excuse – no – appeal disallowed
[2011] UKFTT 782 (TC)
Bailii
England and Wales
Updated: 12 October 2021; Ref: scu.450896
FTTTx PROCEDURE – application for stay pending determination of appeal in Murray Group Holdings – whether determination of that appeal would materially assist determination of these appeals – yes – application allowed
[2013] UKFTT 404 (TC)
Bailii
England and Wales
Updated: 12 October 2021; Ref: scu.515191
FTTTx Information notice, Schedule 36 Finance Act 2008, paragraphs 1(1), 21(1), 21(3) and 21(6)(a)-whether documents reasonably required for purpose of checking taxpayer’s tax position and whether condition B met-held: condition B not met-appeal allowed
[2013] UKFTT 430 (TC)
Bailii
Finance Act 2008 36
England and Wales
Updated: 12 October 2021; Ref: scu.515176
FTTTX PENALTY imposed as a result of alleged carelessness in completion of tax return- the appellant had been abroad for ten years and was confused by the return however the appellant took reasonable care in completing the return- appeal allowed
[2013] UKFTT 249 (TC)
Bailii
England and Wales
Updated: 12 October 2021; Ref: scu.491863
FTTTX INCOME TAX – discovery assessment – section 29 TMA 1970 – whether officer could reasonably have been expected to be aware of understatement of income – information made available pursuant to section 29(6) – whether agent’s conduct negligent – appeal dismissed
Jonathan Cannan
[2012] UKFTT 425 (TC)
Bailii
Taxes Management Act 1970 29
England and Wales
Updated: 12 October 2021; Ref: scu.462781
FTTTx INFORMATION NOTICE – whether documents in ‘possession or power’ of Respondents – meaning of ‘power’ not restricted to immediately enforceable legal right – penalties imposed
[2011] UKFTT 218 (TC), [2011] SFTD 757, 13 ITELR 934, [2011] STI 1780
Bailii
England and Wales
Updated: 08 October 2021; Ref: scu.443004
Income tax – discovery assessment under Section 29 TMA – HMRC withdrew from the appeal – HMRC issued a second discovery assessment but later recognised it was invalid – was the previous withdrawal effective?
[2021] UKFTT 162 (TC)
Bailii
England and Wales
Updated: 07 October 2021; Ref: scu.663727
Application by the Claimants for an interim injunction prohibiting Her Majesty’s Commissioners for Revenue and Customs, ‘HMRC’, from commencing enforcement action against the three Claimants in respect of alleged tax liabilities that are the subject of appeal and postponement applications before the Tax Tribunal.
[2016] EWHC 2926 (Admin)
Bailii
England and Wales
Updated: 06 October 2021; Ref: scu.571948
Whether HMRC behaved unreasonably – no – whether wasted costs should be awarded – no – application dismissed
[2021] UKFTT 205 (TC)
Bailii
England and Wales
Updated: 01 October 2021; Ref: scu.663668
The claimants said that they had ceased to be resident in the UK and therefore were no longer liable to be taxed here.
Keene LJ, Lloyd LJ, Hughes LJ
[2008] EWCA Civ 933
Bailii
England and Wales
Cited by:
Cited – Davies and Another, Regina (on The Application of) v HM Revenue and Customs CA 16-Feb-2010
The parties disputed the interpretation of a booklet issued by the Revenue (IR20) as it defined the phrase ‘ordinarily resident’. In particular the taxpayer complained of an unannounced change of practice made after they had arranged their lives . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 September 2021; Ref: scu.272849
PROCEDURE – application for permission for late appeals against two HMRC decisions – delay of three months and one month – Martland followed and applied – meaning of – serious and significant – common understanding provided a good reason for the first part of the delay – impact of Covid lockdown – balancing of factors – permission granted
[2021] UKFTT 316 (TC)
Bailii
England and Wales
Updated: 30 September 2021; Ref: scu.667925
Application to preclude HMRC from introducing additional arguments in statement of case – scope of closure notice – application dismissed
[2021] UKFTT 82 (TC)
Bailii
England and Wales
Updated: 27 September 2021; Ref: scu.663659
MONEY LAUNDERING REGULATIONS 2007 – Penalty for failure by accountant to register under Regulations (reg 32(4)) – Whether the person ‘took all reasonable steps and exercised all due diligence to ensure that the requirement would be complied with’ (reg 42(2)) – Appeal dismissed
[2012] UKFTT 83 (TC)
Bailii
England and Wales
Updated: 25 September 2021; Ref: scu.450829
Practice – Parties – Joinder – Proceedings between subjects raising issues material to income tax – Joinder of Commissioners of Inland Revenue – Income Tax Act 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c.10), ss. 52 and 64 ; Income Tax Management Act 1964 (c.37), 5.5(6); R.S.C., Ord. 15, r.6(2).
The House clarified the exclusive nature of the jurisdiction of the special or general commissioners. This principle is not to be taken to exclude the jurisdiction of the courts to decide a question of fact or law which is a basis for an income tax assessment where the taxpayer and the revenue so agree, provided the assessment to which the question relates has not become final and provided also the question, ‘in form suitable for decision by the court’, is not ‘so close to the question of the assessment itself’ that the court should decline to entertain it. But either the taxpayer or the revenue have the right to insist the statutory procedure should be followed.
Viscount Dilhorne said: ‘The many reported cases in which this rule has been considered were comprehensively reviewed by Devlin J . . . in Amon -v- Raphael Tuck and Sons Limited . . . In this case the Court of Appeal held that there should be a wide interpretation of the rule. Whether this interpretation is wider than that stated by Devlin J . . . it is not necessary to consider. My difficulty about accepting Lord Denning’s wide interpretation is that it appears to me wholly unrelated to the wording of the rule. I cannot construe the language of the rule as meaning that a party can be added whenever it is just or convenient to do so. That could have been simply stated if the rule was intended to mean that. However wide an interpretation is given, it must be an interpretation of the language used. The rule does not give power to add a party whenever it is just or convenient to do so. It gives power to do so only if he ought to be joined as a party or if his presence is necessary for the effectual and complete determination and adjudication upon all matters in dispute in the cause or matter. It is not suggested that the revenue ought to have been joined.’
Lord Wilberforce said: ‘There may be questions, in form suitable for decision by the court, which are in fact so close to the question of the assessment itself that the court ought not to entertain them but leave them to the statutory procedure. And nothing that I have said must be taken to imply that either the Crown, or the taxpayer, may not be entitled to insist that a particular question, as between them, be so decided. But I find nothing in the income tax legislation to justify the comprehensive proposition for which the appellants contend, namely, that the High Court is absolutely excluded from a vast range of issues of a kind normally justiciable by it, just because those questions arose between the taxpayer and Crown and form a basis, even a necessary basis, for an income tax assessment.’
Lord Diplock: ‘Section 5(6) of the Income Tax Management Act 1964 provides that after notice of assessment has been served ‘the assessment shall not be altered except in accordance with the express provisions of the Income Tax Acts.’ The only way in which an assessment can be altered under the provisions of the Income Tax Acts is by the special commissioners on an appeal to them by the party assessed.’
Lord Wilberforce, Viscount Dilhorne, Lord Hope of Craighead (dissenting), Lord Diplock
[1971] AC 912, [1970] UKHL TC – 46 – 341, [1970] 3 WLR 452, [1970] 3 All ER 16, [1970] TR 129,, 46 TC 341
Bailii
Income Tax Management Act 1964 5(6), Income Tax Act 1952
England and Wales
Citing:
Cited – Barraclough v Brown HL 1897
The 1889 Act gave statutory undertakers who had incurred expenditure in removing a sunken vessel a right ‘to recover such expenses from the owner of such vessel in a court of summary jurisdiction.’ the undertakers began their action in the High . .
Appeal from – In re Vandervell’s Trusts; Vandervell Trustees Limited v White and Others CA 1970
The deceased had sought to create a trust to benefit the Royal College of Surgeons. The parties disputed its tax effect.
Held: Lord Denning MR said: ‘We will in this court give the rule a wide interpretation so as to enable any party to be . .
Cited – Amon v Raphael Tuck and Sons Ltd 1956
The court analysed the circumstances under which additional parties might be joined to an action by a defendant, applying a narrow interpretation. The court considered whether a defendant may be added against the parties’ wishes: ‘There are two . .
Cited by:
Cited – Kinane v Mackie-Conteh CA 1-Feb-2005
The court upheld a declaration by the trial judge that the claimant was an equitable chargee under an equitable charge of the defendant’s property, notwithstanding that the claimant relied on an oral agreement by the defendant for the grant to the . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Matalan Retail Ltd v Revenue and Customs ChD 5-Aug-2009
The taxpayer imported swimwear for sale. The respondent had incorrectly indicated that such swimwear had one classification. The claimant sought to prevent the respondent reclassifying the goods, saying that they had made given binding tariff . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.229080
Appeal from a Penalty
[2021] UKFTT 227 (TC)
Bailii
England and Wales
Updated: 23 September 2021; Ref: scu.663731
Mr Justice Zacaroli
[2020] EWHC 2121 (Ch)
Bailii
Finance (No 2) Act 2005
England and Wales
Updated: 20 September 2021; Ref: scu.653019
FTTTx STRIKE OUT APPLICATION – matter previously heard and dismissed by the First-tier Tribunal – previous application for permission to appeal to the Upper Tribunal refused – abuse of process – strike out application allowed – permission to appeal the decision on the strike out application refused
[2014] UKFTT 132 (TC)
Bailii
England and Wales
Updated: 20 September 2021; Ref: scu.521763
PENALTIES – late payment of self-assessment tax – was there a time to pay agreement in place – no – was there a reasonable excuse – no – appeal dismissed
[2014] UKFTT 161 (TC)
Bailii
England and Wales
Updated: 20 September 2021; Ref: scu.521773
Employment Intermediaries Returns – penalties for failing to file returns – whether reliance on professional advice is a reasonable excuse – yes – Appeal allowed
[2020] UKFTT 289 (TC)
Bailii
England and Wales
Updated: 17 September 2021; Ref: scu.652738
PROCEDURE – enquiry into returns made following automated notice requiring return – whether s12D TMA 1970 applies to treat notice of enquiry under s9A TMA 1970 and closure notice under s28A TMA 1970 as valid – yes – appeal dismissed CAPITAL GAINS TAX – entrepreneurs’ relief – property development and investment company – whether ‘trading company’ – s165A(3) TCGA 1992 – no – appeal dismissed INCOME TAX – transactions in securities – whether main purpose or one of the main purposes of person being a party was to obtain an income tax advantage – s684(1)(c) ITA 2007 – no – appeal allowed INCOME TAX – remittance basis – business investment relief – whether unpaid or reinvested dividends treated as an investment -whether payment of unpaid or reinvested dividends was a ‘potentially chargeable event’ – s809VG ITA 2007 – appeal dismissed
[2020] UKFTT 216 (TC)
Bailii
England and Wales
Updated: 17 September 2021; Ref: scu.651593
The deceased had sought to create a trust to benefit the Royal College of Surgeons. The parties disputed its tax effect.
Held: Lord Denning MR said: ‘We will in this court give the rule a wide interpretation so as to enable any party to be joined wherever it is just and convenient to do so. It would be a disgrace to the law that there should be two parallel proceedings in which the self same issue was raised, leading to difficult and inconsistent results. It would be a disgrace in this very case if the special commissioners should come to one result and a judge in the chancery division should come to another result as to who was entitled to these dividends.’
Lord Denning MR
[1970] Ch 44
England and Wales
Cited by:
Appeal from – In re Vandervell’s Trusts (No 1); Vandervell Trustees Limited v White and Others HL 15-Jul-1970
Practice – Parties – Joinder – Proceedings between subjects raising issues material to income tax – Joinder of Commissioners of Inland Revenue – Income Tax Act 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c.10), ss. 52 and 64 ; Income Tax Management Act . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.229083
Lord Denning MR described the modern practice concerning pleadings: ‘It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated.’
Lord Denning MR, Stephenson LJ, Lawton LJ
[1974] EWCA Civ 7, [1974] Ch 269, [1974] 1 All ER 47, [1974] 3 WLR 256
Bailii
England and Wales
Citing:
Appeal from – Re Vandervell’s Trusts (No 2) ChD 17-Jul-1973
The court considered the requirement that a proposed beneficiary must establish some positive act on the part of the person creating the trust for that person to be bound by the trust asserted. Megarry J said: ‘(1) If a transaction fails to make any . .
Cited by:
Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.262732
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-2; Not necessary to examine Art. 6-1; Not necessary to examine Art. 6-3; Costs and expenses award – Convention proceedings
Fines were imposed on the applicants in respect of tax evasion by their late husband and father. The Court reaffirmed the three criteria to be taken into account for the purposes of classification and reiterated that the concept of ‘criminal charge’ within the meaning of Article 6 is an autonomous one. Reference was made to the nature and severity of the penalty risked, and found that the fines were not inconsiderable.
Held: As regards the nature of the offence, tax legislation lays down certain requirements, to which it attached penalties in the event of non-compliance. The penalties, taking the form of fines, are not intended as pecuniary compensation for damages but are essentially punitive and deterrent in nature. As regards the classification of the proceedings under national law, the Court attaches weight to the findings of the highest court in the land, the Federal Court, in its judgment in this case, that the fine in question was ‘penal’ in character and depended on the ‘guilt’ of the offending taxpayer. Having regard to the above Article 6 was applicable nder its criminal head. Inheritance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law.
19958/92, (1997) 26 EHRR 541, [1997] ECHR 50
Worldlii, Bailii
European Convention on Human Rights 6
Human Rights
Cited by:
Cited – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
gora_custCA2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.165525
The taxpayer companies had paid funds into a trust for employees. They sought to set off the payments against their liability to corporation tax. The revenue argued that they were deductible only in the year in which they were paid to the employees.
Held: The taxpayer’s appeal failed: ‘the whole of the funds were potential emoluments. They could be used to pay emoluments.’ The words ‘with a view to their becoming relevant emoluments’ apply both to the purpose for which amounts are held by an intermediary and also to the purpose for which they are ‘reserved in the account of an employer’. The taxpayer argued that relevant emoluments were contractually or constructively payable, whereas a reserve should properly be made for potential emoluments because they are payable only upon the occurrence of a contingency; for example, a bonus payable if a certain profit is achieved. If that was a correct description of potential emoluments for which a reserve has been made, it would be equally true to say that amounts held by an intermediary were for the payment of emoluments upon a contingency, namely the exercise of a discretion by the trustees. In both cases, the sums in question may or may not be used to pay emoluments but there is at least a realistic possibility that they will be. There may be some unfairness in this, but that unfairness had been confirmed by Parliament.
Lord Hoffmann stated that although a definition may give a word a meaning different from its ordinary meaning, the choice of words by Parliament should not be wholly ignored: ‘If the terms of the definition are ambiguous, the choice of the term to be defined may throw some light on what they mean’.
Lord Hoffmann considered the meaning of the defined term ‘potential emoluments’, said: ‘In the ordinary use of language, the whole of the funds were potential emoluments. It is true that, as Charles J pointed out, ‘potential emoluments’ is a defined expression, and a definition may give the words a different meaning from their ordinary meaning. But that does not mean that the choice of words adopted by Parliament must be wholly ignored. If the terms of the definition are ambiguous, the choice of the term to be defined may throw some light on what they mean.’
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe
[2005] UKHL 47, Times 11-Jul-2005, [2005] STC 1111, [2005] BTC 355, (2003) 77 TC 146, 77 TC 146, [2005] 4 All ER 107, [2005] STI 1235, [2005] Pens LR 395
Bailii, House of Lords
Finance Act 1989 37 43, Income and Corporation Taxes Act 1988 202A 202B
England and Wales
Citing:
At First instance – MacDonald (Inspector of Taxes) v Dextra Accessories Ltd and Others ChD 16-Apr-2003
The inspector sought to disallow charging to current tax period payments made by the employer to an employee benefit trust.
Held: The payments were not made and held by the trustees ‘with a view to becoming relevant emoluments’ within the . .
Appeal from – MacDonald (HM Inspector of Taxes) v Dextra Accessories Ltd and others CA 28-Jan-2004
The company had set up a trust for the benefit of its employees. The Inspector sought to tax the payments made into the trust as ’emoluments’
Held: The appeal was allowed. The payments were ‘potential emoluments’ which were held by the . .
Cited – Heasman v Jordan 1954
Emoluments paid under an office or employment are taxed under Schedule E as income of the year of assessment in which they were earned, and it was irrelevant when they were paid. . .
Special Commissioners – Dextra Accessories Ltd and others v Inspector of Taxes SCIT 25-Jul-2002
SXIT EMPLOYEE BENEFIT TRUST – whether deduction of contributions postponed until taxable as emoluments under FA 1989 s.43(11) – no – whether sub-funds in favour of directors who controlled the company taxable as . .
Cited by:
Cited – Barclays Bank Plc and Another v HM Revenue and Customs CA 11-May-2007
Retired bank employees had previously received free tax advice. When the service was withdrawn, the bank made a payment. The Revenue said that this payment was chargeable to income tax.
Held: The bank’s appeal failed. The payment was made ‘in . .
Cited – Routier and Another v Revenue and Customs ChD 18-Sep-2014
Executors appealed against rejection of their claim that a gift in the will qualified for relief against Inheritance Tax as being a charitable gift. The Trusts concerned assets in Jersey.
Held: The appeal failed: ‘The expression ‘held on trust . .
Cited – Routier and Another v Revenue and Customs CA 16-Sep-2016
Executors appealed against a decision that a residual gift in a will was not charitable and that it was therefore subject to Inheritance Tax arguing that the section if construed in this way was an unlawful restriction on the free movement of . .
Cited – RFC 2012 Plc (Formerly The Rangers Football Club Plc) v Advocate General for Scotland SC 5-Jul-2017
The Court was asked whether an employee’s remuneration is taxable as his or her emoluments or earnings when it is paid to a third party in circumstances in which the employee had no prior entitlement to receive it himself or herself.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.228283
MTIC decisions – application for permission for late appeal – Martland and Katib followed – delay of over four months – no reasons for delay – all relevant circumstances considered and balanced – permission refused
[2021] UKFTT 267 (TC)
Bailii
England and Wales
Updated: 20 August 2021; Ref: scu.666592
The inspector appealed a finding that he was unable to challenge a self-assessment after the normal time limit.
Held: The Act allowed an exemption on the basis that the inspector ‘could not have been reasonably expected on the basis of the information made available to him before the time of the deadline to be aware’ of the insufficiency of the declaration. The starting point was whether the information provided by the taxpayer was sufficient to say he could reasonably aware of the insufficiency. Here the Inspector had had the documents for eighteen months before the deadline, and had ample time to take the few steps which would allow him to judge that sufficiency. Appeal dismissed.
Park J
Times 02-Jan-2003, [2002] EWHC 2689 (Ch)
Bailii
Taxes Management Act 1970 29(5)
England and Wales
Cited by:
Appeal from – Langham (HM Inspector of Taxes) v Veltema CA 26-Feb-2004
The tax inspector had sought to re-open a tax assessment outside the time limit provided. He had discovered that a house had been given to the tax payer by his employers. The taxpayer said this had been discoverable from his self-assessment tax . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.178893
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation period applied. The claimants’ allegation of unjust enrichment by the Commissioners had been accepted by the CA. The Court was now asked whether the ITCs in principle could make out a claim in unjust enrichment against the Commissioners, whether such a claim was excluded by the statutory scheme under s.80 and whether the lack of any such claim was incompatible with EU law.
Held: The commissioners’ appeal was granted, and the cross appeal dismissed.
The Commissioners had been enriched only by the VAT it had received from the managers. This was the surplus of output tax over deducted input tax which it had actually received. Since the claimants had only paid the VAT to the managers, not direct to the revenue, that payment and the managers’ accounting to the revenue for and paying the VAT due was not reducible to one transaction of the transfer of value from the claimants to the revenue. The Commissioners had not been enriched at the direct expense of the claimants, so they had no right at common law to restitution from the revenue, although they may well have a claim against the managers for the VAT they had paid.
The limitation period is designed to avoid the disruption of public finances. Section 80(7) should be construed as excluding non-statutory claims by customers, as well as taxpayers (as was conceded), which might otherwise lie against HMRC in circumstances falling within the scope of section 80: ‘Parliament cannot sensibly be taken to have intended, when it created this scheme for the reimbursement of suppliers (with provision for them in turn to reimburse their customers), subject to strict time limits, that it should exist concurrently with non-statutory liabilities towards suppliers and their customers which were potentially wider in scope and were subject to a longer and less certain limitation period. Such an intention would be inconsistent with the rationale of the statutory scheme.’
Lord Neuberger, President, Lord Mance, Lord Reed, Lord Carnwath, Lord Hodge
[2017] UKSC 29, [2017] STI 1041, [2017] 2 WLR 1200, [2017] BVC 16, [2017] 3 All ER 113, [2017] WLR(D) 28, [2017] STC 985, [2018] AC 275, UKSC 2015/0058
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video
VAT Act 1994 80, Value Added Tax Regulations 1995
England and Wales
Citing:
At First Instance – Investment Trust Companies v HM Revenue and Customs ChD 2-Mar-2012
The claimant had properly accounted for VAT on its transactions for many years, but a decision of the European court had latterly ruled that the services were exempt. The claimant sought restitution from HMRC, who responded by arguing that . .
At ChD (2) – Investment Trust Companies v Revenue and Customs ChD 26-Mar-2013
The claimant investment Trust companies sought repayment of taxes paid in error by way of restitution.
Held: The range of the the law of restitution to recover any tax unlawfully exacted was to be be restricted to those situations where the . .
Appeal from – Investment Trust Companies v Revenue and Customs CA 12-Feb-2015
The claimants having sought repayment of overpaid VAT, they now complained of sums deducted by the Revenue.
Held: The Court allowed the Lead Claimants’ appeal, to the extent of the notional pounds 75 paid in respect of dead periods, and . .
Cited – JP Morgan Fleming Claverhouse Investment Trust and Another v HM Revenue and Customs (Taxation) ECJ 1-Mar-2007
ECJ Value added tax – Exemption of the management of special investment funds Concept of ‘special investment funds as defined by Member States’ discretion limits – Closed-ended investment funds. . .
Cited – Fleming (T/A Bodycraft) v Revenue and Customs HL 23-Jan-2008
The transitional rules introducing time limits for failing to deduct VAT inputs made insufficient allowance for the decisions in Marks and Spencer and Grundig.
Held: Lord Hope said: ‘To be compatible with EU law, taxpayers were entitled to be . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Cited – Moses v Macferlan KBD 1760
An action for money had and received will only lie where it is inequitable for the defendant to retain the money. The defendant in an action for money had and received ‘can be liable no further than the money he has received’. . .
Mentioned – Moses v Macferlan KBD 1760
An action for money had and received will only lie where it is inequitable for the defendant to retain the money. The defendant in an action for money had and received ‘can be liable no further than the money he has received’. . .
Cited – Becker v Finanzamt Muenster-Innenstadt ECJ 19-Jan-1982
ECJ It would be incompatible with the binding effect which article 189 of the EEC treaty ascribes to directives to exclude in principle the possibility of the obligation imposed by it being relied upon by persons . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Peter v Beblow 25-Mar-1993
Supreme Court of Canada – Family law – Trusts – Constructive trust – Long-term common law relationship – Unpaid homemaker – Homemaker maintaining and improving property – Whether proprietary link necessary to constructive trust established – Whether . .
Cited – Elida Gibbs Ltd v Commissioners Of Customs And Excise ECJ 24-Oct-1996
ECJ Where
(a) a manufacturer issues a money-off coupon, which is redeemable at the amount stated on the coupon by or at the expense of the manufacturer in favour of the retailer, (b) the coupon, which is . .
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Ministero delle Finanze v IN CO GE ’90 and others ECJ 22-Oct-1998
(Rec 1998,p I-6307) (Judgment) The case concerned claims for the repayment of a charge which had been levied under Italian legislation which was inconsistent with EU law. A preliminary issue before the national court was whether the claims fell . .
Cited – Littlewoods Retail Ltd and Others v Her Majesty’s Commissioners of Revenue and Customs ECJ 19-Jul-2012
(Grand Chamber) Second and Sixth VAT Directives – Input tax – Refund of excess – Payment of interest – Procedures
The court considered whether on repayment to a taxpayer of wrongly imposed VAT, the interest returned with the repayment should be . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Cited – TFL Management Services Ltd v Lloyds Bank Plc CA 14-Nov-2013
The court was asked: ‘A spends money seeking a judgment for the recovery of a debt from B. A fails to recover the debt because, so the court holds, the debt is not in fact owed by B to A (as A mistakenly thought), but owed by B to C. C then recovers . .
Cited – Relfo Ltd (In Liquidation) v Varsani CA 28-Mar-2014
. .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Ruabon Steamship Co v The London Assurance Co HL 1900
Lord Halisbury said: ‘I cannot understand how it can be asserted that it is part of the common law that where one person gets some advantage from the act of another, a right of contribution towards the expense from that act arises.’ Rejecting the . .
Cited – Menelaou v Bank of Cyprus UK Ltd CA 19-Jun-2013
The Court was asked questions about the law of unjust enrichment, and one of the remedies which may be granted to reverse the effect of unjust enrichment, namely subrogation to an unpaid vendor’s lien. The bank had released its charges over property . .
Cited – Burston Finance Ltd v Speirway Ltd ChD 1974
Walton J described the typical case of subrogation: ‘What is the basis of the doctrine of subrogation? It is simply that, where A’s money is used to pay off the claim of B, who is a secured creditor, A is entitled to be regarded in equity as having . .
Cited – 123 East Fifty-Fourth Street Inc v United States 1946
(Learned Hand J dissenting) The majority affirmed a judgment for refund of cabaret taxes improperly levied in the erroneous belief that the taxpayer’s establishment qualified as a cabaret. The majority held that the limitation statute, in its then . .
Cited – Hanover Shoe Inc v United Shoe Machinery Corporation 14-Oct-1968
United States Supreme Court . .
Cited – Barclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
Cited – Amministrazione Delle Finanze Dello Stato v Spa San Giorgio ECJ 9-Nov-1983
ECJ Questions submitted for a preliminary ruling – reference to the court – right of every national court – stage of the proceedings before the national court – nature of the decision to be given by the national . .
Cited – Abbey National Building Society v Cann HL 29-Mar-1990
Registered land was bought with an advance from the plaintiff. The transfer and charge were registered one month later, but in the meantime, the buyer’s parents moved in. When the buyer defaulted, his mother resisted possession proceedings, saying . .
Cited – Commissioner of State Revenue v The Royal Insurance Australia Ltd 7-Dec-1994
(High Court of Australia) A payment had been made under statute which was later repealed with retrospective effect.
Held: The monies paid under the retrospectively repealed statute had not been paid under a mistake of law at common law. . .
Cited – Kleinwort Benson Ltd v Birmingham City Council CA 20-May-1996
No defence of unjust enrichment was available to defend a claim on a failed interest rate swap agreement. . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – VDP Dental Laboratory v Staatssecretaris van Financien ECJ 26-Feb-2015
Reference for a preliminary ruling – Value added tax – Deductions – Exemptions – Supplies of dental prostheses . .
Cited – Monro v HM Revenue and Customs CA 9-Apr-2008
The Commissioners conceded that, in principle, there could be a common law right to recover sums paid by way of tax under a mistake of law, but argued that such a claim was precluded because it would be inconsistent with the statutory scheme under . .
Cited – Kingstreet Investments Ltd v New Brunswick (Finance) Ltd 11-Jan-2007
(Supreme Court of Canada) . .
Cited – British Columbia v Canadian Forest Products Ltd 11-Jun-2004
Canlii Damages – Environmental damages to public lands – Compensation – Forest fire – Valuation of loss of harvestable trees, and of non-harvestable trees in environmentally sensitive areas – Appropriate basis to . .
Cited – Equuscorp Pty Ltd v Haxton 8-Mar-2012
High Court of Australia – Restitution – Restitution of benefits derived from unenforceable or illegal contracts – Recovery of money paid as money had and received – Respondents invested in tax driven blueberry farming schemes – Respondents borrowed . .
Cited – Littlewoods Retail Ltd and Others v HM Revenue and Customs (No 2) ChD 28-Mar-2014
The claimants had recovered very substantial overpayments made of VAT. They sought recovery of compound interest. The ECJ, on reference, said that this was a matter for national law.
Held: The claim succeeded. The sections of the 1994 Act were . .
Cited by:
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.581647