In HMRC v The Test Claimant in the Franked Investment Income Group Litigation [2014] EWCA Civ 1214 (2 September 2014) the Court of Appeal explained its decision to dismiss HMRC’s appeal.
The issue was whether HMRC could amend its defence to rely on the standstill provision in TFEU art 64(1) to deny claims by the claimants for the time value of advance corporation tax (ACT) on third country foreign income dividends (FIDs). The claimants were otherwise entitled by reason of the breach of TFEU art 63 pursuant to the CJEU’s decision in the FII Group Litigation C-446/04. The standstill provision allows some legislation in force as at 31 December 1993 which would otherwise infringe TFEU to continue.
The Court of Appeal found that HMRC was estopped per rem judicatam from raising the issue as it had already been decided in the High Court [2008] EWHC...
