Foulser and Another v HM Inspector of Taxes: ChD 20 Dec 2005

The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of establishment under European law since the company was not restricted from setting up business. It would lose only the fees associated with the transactions. The court should no rule on hypothetical questions: ‘Taxation provisions may have any number of incidental effects on the ability of financial institutions and professionals established in other Member States to charge fees, but that cannot of itself engage the right of freedom of establishment.’
Lawrence Collins J
[2005] EWHC 2958 (Ch), Times 13-Jan-2006
Taxation of Chargeable Gans Tax Act 1992 165(4)
England and Wales
CitedSteele v EVC International NV 1996
Control of a company within the section means shareholder control. . .
CitedX and Y v Riksskatteverket ECJ 21-Nov-2002
Europa Freedom of establishment – Free movement of capital – Income tax – Tax advantages for the transfer at undervalue of shares to companies in which the transferor has a holding
Swedish legislation . .
CitedAinsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
CitedRegina v Secretary of State for Transport, ex parte Factortame ECJ 25-Jul-1991
ECJ Member States – Obligations – Exercise of residual powers in the field of the registration of vessels – Compliance with Community law. Free movement of persons – Freedom of establishment – Registration of a . .
CitedRegina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
CitedBacardi-Martini and Cellier des Dauphins v Newcastle United Football Company Ltd ECJ 21-Jan-2003
Europa Reference for a preliminary ruling – Freedom to provide services – Refusal to display advertisements for alcoholic drinks at a sporting event taking place in a Member State whose law allows television . .
CitedLourenco Dias v Director da Alfandega do Porto ECJ 16-Jul-1992
Europa 1. In the framework of the procedure for cooperation between the Court of Justice and the courts of the Member States provided for by Article 177 of the Treaty, the national court, which alone has direct . .
CitedRegina v International Stock Exchange, ex parte Else (1982) Ltd CA 1993
The court gave guidance on the circumstances under which questions should be referred to the European Court of Justice. . .
CitedMetallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 20-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 . .
CitedImperial 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 . .
CitedImperial 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 . .
CitedLankhorst-Hohorst GmbH v Finanzamt Steinfurt ECJ 12-Dec-2002
German law taxed interest paid on loan repayments made by a company against a loan from a shareholder, but only where the shareholder was not resident in the same country as the company. The tax authority took the view that the payments were a . .
CitedC. Baars v Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorinchem ECJ 13-Apr-2000
Europa Freedom of establishment – Assets invested in shares in companies established in the taxing Member State – Exemption from wealth tax – Assets invested in shares in companies established in another Member . .
CitedGraziana Luisi and Giuseppe Carbone v Ministero del Tesoro ECJ 31-Jan-1984
The freedom to provide services includes the freedom, for the recipients of services, to go to another member state in order to receive a service there, without being obstructed by restrictions, even in relation to payments. Tourists, persons . .
CitedEurowings Luftverkehrs AG v Finanzamt Dortmund-Unna ECJ 26-Oct-1999
Freedom to provide services – Commercial tax on capital and operating profit – Reinstatement in tax base – Exemption not applicable to lessee of property whose owner is established in another Member State and therefore not subject to tax . .
Appeal FromFoulser v HM Inspector of Taxes SCIT 22-Feb-2005
CAPITAL GAINS TAX – shareholder giving shares in private company to a company held within an insurance bond – whether the former shareholder and the insurance company were connected persons as acting together to secure or exercise control of the . .

Cited by:
Appeal fromFoulser and Another v Macdougall CA 17-Jan-2007
The taxpayers sought relief after giving shares in a company to another company owned by themselves. The taxpayers appealed refusal of hold over relief in respect of chargeable gains.
Held: The holdings in the recipient company made the . .

These lists may be incomplete.
Updated: 19 March 2021; Ref: scu.236571