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Very interesting purported tax loophole SC case

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With interesting comments on a tax case (Luke - not part of their decison) that can apply in the reverse direction against unjustified (by policy) excessive tax.

Para 21 of this decision seems inconsistent with the SC's Project Blue judgment and the reference there to such tax loopholes (AKA tax holidays) being basically OK and in effect tough luck on HMRC.

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By Montrose
22nd May 2019 17:25

Taxpayers can succeed!

As Mr Justice Lightman put it in the case of

- and -

"This may leave a yawning gap in the protection available to the CIR which ought to be filled, but whether the gap ought to be filled and how it should be filled are
matters for the legislature, and not the Court".

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By Justin Bryant
23rd May 2019 11:30

Compare & contrast with D'Arcy where I think the loophole was acceptable as it arose between different taxing statutes, so the tax fell between stools so to speak (rather than disappeared in a proverbial puff of smoke between sections in the same taxing statute that was meant to tax it for policy reasons).

As an aside, this is the 1st time I've seen Lord Sumption (jointly) decide a tax avoidance case (and it will be the last time as he's retired), so it's a bit disappointing in that regard as he's supposed to be the cleverest legal brain in Britain and one would have hoped that he would have at least tried to reconcile this decision re tax loopholes with Project Blue.

Also, Lady Arden is well known for finding any reason to do down tax avoidance schemes (e.g. PA Holdings), so no surprise here overall.

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