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

Fecha: 02-Oct-2025

F.1.5 The Alleged Tax Ownership Representation

F.1.5 The Alleged Tax Ownership Representation:

that the Tax Agent’s named client was the owner of the shares in the Danish company described in the CAN, as a matter of Danish tax law, as at the date on which the referenced dividend was declared

498.

Mr Graham KC articulated the essence (see paragraph 462 above) as being an allegation that SKAT was told that “the named client was the Danish tax law owner of the shares when the dividend was declared”. That is to the same effect but uses fewer words, so there could be no objection to considering the case by reference to it.

499.

There was no express statement to that or any similar specific effect in any of the tax reclaim documents. The argument for SKAT was that it was nonetheless conveyed by them, so that on an objective assessment the alleged representation was made to it, because:

(i)

CANs referred to a specific number of “shares” or “securities”, and in the case of NCB CANs “Holdings” of the reference securities as at a stated date.

That is true, but it does not mean any statement to the effect of the tax ownership representation was made (see paragraphs 481 to 494 above).

(ii)

Since the reclaim documents “represented that the [Tax Agent’s client] had received dividends from the Danish company net of tax withheld”, references to “shares” or “securities” in a CAN filed in support of a dividend tax refund claim “objectively represented that … shares were owned (for the purposes of Danish tax law) … at the time of the dividend declaration …”. (The references in Salgado CANs to the Tax Agent’s client being a “beneficial” owner added nothing for present purposes, it was said, since SKAT’s case did not rely on the additional requirement of beneficial ownership under the applicable DTT.)

I find that convoluted and confused. Submitting a CAN in support of a tax refund claim could not change, or be reasonably thought by SKAT to change, what the CAN itself, a document issued by a custodian to its client, purported to record. That exposes the argument as being, in truth, an argument that because a tax refund was being sought, and ownership of shares for tax purposes was a requirement of any entitlement to a refund, it must have been being stated to SKAT that there was ownership of shares for tax purposes. That is flawed logic I have rejected already (see paragraph 441 above). Further, the premise assumed the existence of a different representation, viz. that the client had “received dividends from the Danish company net of tax withheld”. If that referred to receipt of dividends in the eyes of Danish tax law, it would seem to be assuming in SKAT’s favour that the alleged dividend representations were made; but my conclusion is that they were not (see below). If it did not refer to receipt of dividends for Danish tax purposes, then it would not imply anything about share ownership for Danish tax purposes; and anyway it would then involve an attempt to rely in closing on an unpleaded representation for the purpose of trying to establish the pleaded tax ownership representation, which would not be fair.

(iii)

Form 06.008, where used, referred to a “no. of securities” of which the identified client was the “shareholder”.

I am not allowing SKAT to place unpleaded reliance on the language of Form 06.008 (see paragraph 437 above). The submission was wrong in any event, because Form 06.008 identified the client as having been the “owner/usufructuary” of the shares identified. By a footnote, the Form required the deletion of whichever of those was inapplicable, but that requirement was not followed.

(iv)

The statement by Form 06.003 that the Tax Agent was claiming on behalf of a named “beneficial owner” implied that the named client owned Danish shares, else there was nothing of which it could have been the beneficial owner. This was particularly so, it was said, when coupled with the various references to the receipt of dividends to which there could only have been entitlement if there was share ownership on the dividend declaration date.

This is another strained argument. It is also flawed, in that (as I noted in paragraph 454 above), references to being a ‘beneficial owner’ would naturally be thought, in context, to relate to the DTT concept, which did not require share ownership. The proposed ‘coupling’ repeats the attempt I rejected in (ii) above to assume the existence of a dividend entitlement representation.

500.

For those reasons, I am not persuaded that the tax ownership representation was made to SKAT as it alleged.

501.

As will be clear from paragraph 499 above, SKAT placed no reliance in closing argument on the language of any of the Tax Agent’s cover letters. There was pleaded reliance, in support of the tax ownership representation, on the fact that Goal’s letters stated that they enclosed “a tax reclaim form together with evidence of … tax deduction paid on the above client’s securities”, and that Acupay’s, Syntax’s and Koi’s letters referred to a “reclaim application” from a “qualifying” entity for a “refund of Danish Dividend Tax that was previously withheld in relation to their investments”. Those introductory words do not in my judgment amount to or convey a statement to the detailed and specific effect of the alleged tax ownership representation, or anything like it.