Spoiler alerts? Are opening remarks from judges in avoidance cases a reliable guide to how those judges will find in the end?
The opening line of single Supreme Court judgment in UBS v HMRC [2016] UKSC 13 from Lord Reed reads as follows:
‘In our society, a great deal of intellectual effort is devoted to tax avoidance. The most sophisticated attempts of the Houdini taxpayer to escape from the manacles of tax.’
With an opening line like that, it is unsurprising to learn that the taxpayer went on to lose the case. This is certainly not the first time that the opening remarks from judges in tax avoidance cases signal how those judges will find in the end. In the recent Rangers case (in Rangers v Advocate General for Scotland [2017] UKSC 45), Lord Hodge’s opening line was far subtler:
‘This appeal concerns a tax avoidance scheme by which employers paid remuneration to their employees through an employees’ remuneration trust in the hope that the scheme would avoid liability to income tax and class 1 national insurance.’
By conceptualising the appeal in this way however, David Goldberg QC and Nigel Doran have pointed out (in Tax Journal, 14 July 2017) that this effectively determined the result, in this case, a taxpayer loss.
More subtle again, and perhaps I am reading too much into this, is the opening line from the single judgment in Pendragon from Lord Sumption (HMRC v Pendragon [2015] UKSC 37):
‘This appeal is about an elaborate scheme designed and marketed by KPMG relating to demonstrator cars used by retail distributors for test drives and other internal purposes. In the ordinary course, a car distributor will buy new cars for use as demonstrators, paying VAT on the full amount of the sale price. This will in due course be recoverable as input tax by being set off against the output tax for which the distributor was accountable on its taxable supplies. The object of the KPMG scheme was to ensure that companies in the distributor’s group were able to recover input tax paid on the price of new cars acquired as demonstrators from manufacturers, while avoiding the payment of output tax on the price at which the car was ultimately sold second-hand to a consumer.’
Note can be taken of the use of language such as ‘elaborate scheme’, the fact that it is ‘marketed’ and the use of the word ‘avoiding’.
The single judgment from Lord Walker in Futter and Pitt v HMRC [2013] UKSC 26 (although note that there was a part taxpayer victory in this case) and his lead judgment in HMRC v Tower M’Cashback [2011] UKSC 19) more clearly evince the judge’s disdain for avoidance schemes. However, Lord Walker’s style was not to open with such lines, but rather to plant them towards or in the conclusion. In Futter and Pitt, he wrote as follows:
‘[S]ome cases of artificial tax avoidance the court might think it right to refuse relief, either on the ground that such claimants, acting on supposedly expert advice, must be taken to have accepted the risk that the scheme would prove ineffective, or on the ground that discretionary relief should be refused on grounds of public policy. Since the seminal decision of the House of Lords in WT Ramsay Ltd v IRC [1982] AC 300, there has been an increasingly strong and general recognition that artificial tax avoidance is a social evil which puts an unfair burden on the shoulders of those who do not adopt such measures.’
The final paragraph of Tower M’Cashback reads as follows:
‘If a majority of the court agrees with my conclusion, it is to be expected that commentators will complain that this court has abandoned the clarity of BMBF and returned to the uncertainty of Ensign. I would disagree. Both are decisions of the House of Lords and both are good law. The composite transactions in this case, like that in Ensign (and unlike that in BMBF) did not, on a realistic appraisal of the facts, meet the test laid down by the Capital Allowances Act 1990, which requires real expenditure for the real purpose of acquiring plant for use in a trade. Any uncertainty that there may be will arise from the unremitting ingenuity of tax consultants and investment bankers determined to test the limits of the capital allowances legislation.’
There might well be a thesis behind the extracts, but it should not be overstated. These are just four examples of statements from Supreme Court judges in tax avoidance cases. When the words ‘tax avoidance’ are searched in the BAILII database of Supreme Court judgments (i.e. judgments arising from the UK’s highest court since 2009), 17 cases are found. Thus, whilst some might argue that the current Supreme Court wind blows in favour of HMRC in avoidance cases, the idea that this is evidenced by language used in those cases is not sustainable on the evidence produced here.
Spoiler alerts? Are opening remarks from judges in avoidance cases a reliable guide to how those judges will find in the end?
The opening line of single Supreme Court judgment in UBS v HMRC [2016] UKSC 13 from Lord Reed reads as follows:
‘In our society, a great deal of intellectual effort is devoted to tax avoidance. The most sophisticated attempts of the Houdini taxpayer to escape from the manacles of tax.’
With an opening line like that, it is unsurprising to learn that the taxpayer went on to lose the case. This is certainly not the first time that the opening remarks from judges in tax avoidance cases signal how those judges will find in the end. In the recent Rangers case (in Rangers v Advocate General for Scotland [2017] UKSC 45), Lord Hodge’s opening line was far subtler:
‘This appeal concerns a tax avoidance scheme by which employers paid remuneration to their employees through an employees’ remuneration trust in the hope that the scheme would avoid liability to income tax and class 1 national insurance.’
By conceptualising the appeal in this way however, David Goldberg QC and Nigel Doran have pointed out (in Tax Journal, 14 July 2017) that this effectively determined the result, in this case, a taxpayer loss.
More subtle again, and perhaps I am reading too much into this, is the opening line from the single judgment in Pendragon from Lord Sumption (HMRC v Pendragon [2015] UKSC 37):
‘This appeal is about an elaborate scheme designed and marketed by KPMG relating to demonstrator cars used by retail distributors for test drives and other internal purposes. In the ordinary course, a car distributor will buy new cars for use as demonstrators, paying VAT on the full amount of the sale price. This will in due course be recoverable as input tax by being set off against the output tax for which the distributor was accountable on its taxable supplies. The object of the KPMG scheme was to ensure that companies in the distributor’s group were able to recover input tax paid on the price of new cars acquired as demonstrators from manufacturers, while avoiding the payment of output tax on the price at which the car was ultimately sold second-hand to a consumer.’
Note can be taken of the use of language such as ‘elaborate scheme’, the fact that it is ‘marketed’ and the use of the word ‘avoiding’.
The single judgment from Lord Walker in Futter and Pitt v HMRC [2013] UKSC 26 (although note that there was a part taxpayer victory in this case) and his lead judgment in HMRC v Tower M’Cashback [2011] UKSC 19) more clearly evince the judge’s disdain for avoidance schemes. However, Lord Walker’s style was not to open with such lines, but rather to plant them towards or in the conclusion. In Futter and Pitt, he wrote as follows:
‘[S]ome cases of artificial tax avoidance the court might think it right to refuse relief, either on the ground that such claimants, acting on supposedly expert advice, must be taken to have accepted the risk that the scheme would prove ineffective, or on the ground that discretionary relief should be refused on grounds of public policy. Since the seminal decision of the House of Lords in WT Ramsay Ltd v IRC [1982] AC 300, there has been an increasingly strong and general recognition that artificial tax avoidance is a social evil which puts an unfair burden on the shoulders of those who do not adopt such measures.’
The final paragraph of Tower M’Cashback reads as follows:
‘If a majority of the court agrees with my conclusion, it is to be expected that commentators will complain that this court has abandoned the clarity of BMBF and returned to the uncertainty of Ensign. I would disagree. Both are decisions of the House of Lords and both are good law. The composite transactions in this case, like that in Ensign (and unlike that in BMBF) did not, on a realistic appraisal of the facts, meet the test laid down by the Capital Allowances Act 1990, which requires real expenditure for the real purpose of acquiring plant for use in a trade. Any uncertainty that there may be will arise from the unremitting ingenuity of tax consultants and investment bankers determined to test the limits of the capital allowances legislation.’
There might well be a thesis behind the extracts, but it should not be overstated. These are just four examples of statements from Supreme Court judges in tax avoidance cases. When the words ‘tax avoidance’ are searched in the BAILII database of Supreme Court judgments (i.e. judgments arising from the UK’s highest court since 2009), 17 cases are found. Thus, whilst some might argue that the current Supreme Court wind blows in favour of HMRC in avoidance cases, the idea that this is evidenced by language used in those cases is not sustainable on the evidence produced here.
