CL-2018-000297, CL-2018-000404, CL-2018-000590, - [2025] EWHC 2364 (Comm)

Fecha: 02-Oct-2025

C.2 The Tax Refund Claims

103.

The 4,170 claims for a tax refund with which this judgment is concerned were made to SKAT between 20 August 2012 and 22 July 2015 using the ‘Form Scheme’, one of the schemes then in operation by which SKAT granted refunds of Danish dividend tax. Each claim referenced a stated number of shares in one of the companies listed on the OMX C20 Index. The 4,170 claims resulted in payments by SKAT totalling DKK12,090,844,948.33.

104.

The Form Scheme involved the submission, with supporting material, of a standard form published by SKAT, to seek relief from and a refund of Danish dividend tax. Therefore, in each instance, SKAT received:

(i)

a cover letter from one of four tax reclaim agents (the ‘Tax Agents’);

(ii)

a completed tax reclaim form headed “Claim to Relief from Danish Dividend Tax” (the ‘Tax Reclaim Form’), which in almost every case was the then current version, Form 06.003. A predecessor in a different format, Form 06.008, was still accepted by SKAT if it was used, and it was used in 84 of the 4,170 tax refund claims at issue (but see paragraph 106 below);

(iii)

a CAN, or several CANs, issued by a custodian to the submitting Tax Agent’s relevant client, which will have been a buyer like B in my diagram at paragraph 61 above;

(iv)

a power of attorney authorising the submitting Tax Agent to make the claim on behalf of that client; and

(v)

a document from the tax authority of that client’s domicile certifying its status there for tax purposes.

105.

SKAT alleged that, given some of the content of those documents and the fact that they were submitted as part of a tax refund claim in respect of Danish dividend tax, the making of each of the 4,170 tax refund claims involved particular misrepresentations being made to SKAT, intended to induce and in fact inducing it to pay the refund claimed. The detail as to that is considered later in this judgment (paragraph 424ff).

106.

I need to say a little more about the older Form 06.008, used in 84 of 4,170 instances. By June 2012 it was not available on SKAT’s website, which directed use of the then current Form 06.003. Form 06.008 stated by its n.1 that “The claim must be made in triplicate”, and I accept the evidence from recollection of SKAT’s Mr Nielsen that it comprised three materially identical pages, one for each of SKAT, the foreign tax authority and the tax refund claimant. I was shown single-page examples, each of which identified itself as either “Copy 1 (For the Danish Tax Authorities)” or “Copy 2 (For the Foreign Tax Authorities)”. It seems likely, therefore, that the third page was “Copy 3”, for the refund claimant. I do not accept evidence that Mr Nielsen and SKAT’s Ms Rømer both gave that Form 06.003 replaced some yet different, two-page form. The evidence each gave on that was unclear and confusing, and not consistent with the evidence of the other. Form 06.008 did not call for a CAN or anything similar to be submitted in support. It required information about “dividends from shares or participations” of which the refund claimant was “the owner / usufructuary⁽²⁾” (n.2 being an instruction to “Delete whichever is inapplicable”) and the Danish company was supposed to stamp and sign the Form itself by way of certification “that the dividends stated in column 7 were paid after deduction of dividend tax at the amount of DKK: ” (obviously calling for an amount to have been inserted before the Danish company signed). So that I will have been clear in what I say about the older form:

(i)

on the evidence I had at trial, the ‘Copy 1’ page seems to have been numbered ‘06.008’, the ‘Copy 2’ page, potentially confusingly, seems to have been numbered ‘06.003’, and I cannot say what, if any, number was given to the ‘Copy 3’ page (if indeed that is how the third page was labelled);

(ii)

I shall always refer to the older form as ‘Form 06.008’, even if I am referring to a particular example in evidence of a ‘Copy 2’ page; and

(iii)

when I say that Form 06.008 was still accepted by SKAT in the relevant period, if used, and that it was used in the 84 instances:

(a)

there was no evidence that Form 06.008, when used and accepted during the relevant period, was used as intended, i.e. in triplicate and bearing the Danish company’s attestation;

(b)

in the examples of its use I was shown, only a single page (‘Copy 1’ or ‘Copy 2’) was used, without that attestation.