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

Fecha: 02-Oct-2025

SKAT submitted in closing, to the contrary, that Mr Bains conceded in cross-examination that he understood during the relevant period that the core representations, or their essence, would be made to

268.

SKAT submitted in closing, to the contrary, that Mr Bains conceded in cross-examination that he understood during the relevant period that the core representations, or their essence, would be made to SKAT by any tax refund claim submitted to it. In my judgment, that was not the effect of his evidence, considered as a whole. For example, SKAT submitted that he conceded “that part of the application would be saying to the authority that tax had been withheld from the payment of a dividend received by the client”. The full exchange in cross-examination was much more nuanced and equivocal, and the final question eliciting the answer on which SKAT relied was long, complex, and included a false premise apt to lead a witness astray (my added emphasis throughout):

“Q. You would have understood that the tax agents, whether it was Goal or Acupay or someone else, would submit a document, a form, to the Danish tax authorities, yes?
A. Yes, I drafted the Acupay exclusivity agreement which you brought up a few days ago [viz., a draft prepared by Mr Bains in March 2012 ].
Q. And you would have understood that that document would have told the Danish authority that Solo's client wanted to reclaim tax, yes?
A. That is what reclaim agents do, so the answer is yes.
Q. Yes. And the document would also have said that the client had had tax withheld on a dividend that it had received, yes?
A. I wouldn't have thought about it in that kind of detail. I just know reclaim agents go and get the reclaims. That is what they do. That is the full extent of my knowledge of what reclaim agents do.
Q. Even from May 2013, are you telling us that you didn't understand that an application for a tax reclaim would involve saying that the client had received dividends on Danish shares that it owned?
A. Again, if you had asked me in May 2013: what does a reclaim agent need to tell a government -- no, I just wouldn't have known what -- I wouldn't have known it in the words you have said. To me, tax agents, reclaim agents, make the reclaims on behalf of clients who have done dividend arbitrage trades.
Q. What are they reclaiming, Mr Bains?
A. Again, they are reclaiming -- well, I don't know, sorry. I don't know how to answer your question there.
Q. You don't know what the tax agents are reclaiming?
A. Okay -- oh, got it, okay. So reclaim agents are reclaiming withholding taxes.
Q. Yes. So you would have been aware that the client would have had -- the client would be saying that it had had tax withheld from its dividend, wouldn't you?
A. I don't know what the client would be saying.
Q. But if you are aware that a tax reclaim is being made, and you have been very kind and helpful and you have said that you understood that what that meant is the client would be saying that it had had withholding tax withheld from it and that that was what it would be reclaiming, you must have well understood that part of the application would be saying to the authority that tax had been withheld from the payment of a dividend received by the client, yes?
A.
If you had asked me that question in May 2013, I would have said yes. By then, I would have known that, yes.