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This is not a helpful judgement re Willoughby etc.

https://assets.publishing.service.gov.uk/media/5e678649d3bf7f6d43c24a9e/Davies_and_others_v_HMRC.pdf

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Sway was basically laughed out of court except on the Bricom point that he still lost on. Also he lost the DTA claim point with the UTT saying claims are required! In para 94 Sway accepted the power to enjoy point; didn’t even argue it and also did not argue EU law freedoms per Routier SC.

https://assets.publishing.service.gov.uk/media/5e678649d3bf7f6d43c24a9e/...

The life policy is established in the Isle of Man, so you have free movement of capital as it’s a third country now for sure per Routier. And I think there is a fairly ok case in these type of cases as it’s clear discrimination and disproportionate. He also doesn’t appear to make the Willoughby point properly. What Nolan was saying was that it cannot be tax avoidance to take advantage of a specific fiscal regime. You bring yourself within the CE regime and if non payment of tax on underlying fund growth is a motive it is still not tax avoidance because you are taxed according to the CE regime. This is the better point that it appears Sway fails to make. Of course their subjective motive was to avoid tax on fund growth (so was Willoughby’s) but it’s just like saying if you set up a UK company it is IT avoidance because without the company you would be subject to IT.

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