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Bad news for 2/3 taxpayers in Fisher CoA re ToAA

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1438.html

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Paras 65 & 70 basically tells you the result before you get to the end, although para 73 is helpful re passive shareholders (and so it's a win for that one taxpayer out of three therefore and now results in an incentive to not participate in such decisions!). The conclusion in paras 75 to 80 is entirely unsurprising. Para 90 is interesting in clarifying impact/relevance of Brebner type MD arguments. Para 113 is helpful in distinguishing potential breach of EU movement of capital freedom re investments. Para 137 is helpful in clarifying DA validity tests caselaw. Very interesting dissenting judgment from Lord Justice Phillips - which looks right to me and is relevant to control tests like LRs and leads to bonkers corollaries there and elsewhere if he’s wrong as he says.

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1438.html

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By Justin Bryant
07th Oct 2021 09:38

Another odd corollary that indicates Phillips LJ is right is that shareholders could just appoint independent directors to make the decisions to avoid potential ToAA issues.

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