The recent cases of Bhaur and JTC illustrate the opportunities and challenges for taxpayers who have misunderstood the tax consequences of a transaction, write Ben Elliott and Arthur Wong (Pump Court Tax Chambers).
Fundamentals
Equitable rescission is an important remedy where a person has entered into a transaction acting under a mistake as to the tax consequences. Unlike the remedy of rectification which sees the court amend the terms of an instrument to reflect the parties’ intentions a successful rescission claim generally results in the disposition in question being set aside altogether. There is however some flexibility in this regard: see Kennedy v Kennedy [2014] EWHC 4129 (Ch) in which only one clause of the appointment was set aside on the basis that it was a self-contained and severable provision. Importantly rescission takes effect retrospectively thus the rescinded instrument will be treated both...
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The recent cases of Bhaur and JTC illustrate the opportunities and challenges for taxpayers who have misunderstood the tax consequences of a transaction, write Ben Elliott and Arthur Wong (Pump Court Tax Chambers).
Fundamentals
Equitable rescission is an important remedy where a person has entered into a transaction acting under a mistake as to the tax consequences. Unlike the remedy of rectification which sees the court amend the terms of an instrument to reflect the parties’ intentions a successful rescission claim generally results in the disposition in question being set aside altogether. There is however some flexibility in this regard: see Kennedy v Kennedy [2014] EWHC 4129 (Ch) in which only one clause of the appointment was set aside on the basis that it was a self-contained and severable provision. Importantly rescission takes effect retrospectively thus the rescinded instrument will be treated both...
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