UT/2021/000157 - [2024] UKUT 00110 (TCC)

The sole ground of appeal upon which permission was granted by the Upper Tribunal (Judge Rupert Jones) was stated as follows:

“The FTT erred in concluding at [30]–[40] of its decision that the £1m paid by SHL to Mr Tenconi for transfer of his beneficial interest in the distribution rights in MAH was a disposal of incorporeal property for the purposes of section 21(1)(a) TCGA 1992.”

Earlier in his permission decision Judge Jones explained the arguable error of law as follows:

“…that while the beneficial interest was transferred and disposed of to SHL, the legal interest in the distribution rights was not capable of being transferred (under the memorandum and articles of association) and was neither disposed of nor transferred to SHL. The distribution rights were only ever capable of being surrendered to MAH, under the terms of the articles of association and were never disposed of but subsequently surrendered by Mr Tenconi after the transfer of his beneficial interest.”

It is relevant to note that Mr Tenconi had sought permission to appeal on a number of other grounds including that the distribution rights were incapable of being property in the first place because of their lack of transferability He was however turned down on those grounds, it being considered that the FTT did not arguably err in deciding that the distribution rights were assets or incorporeal property for the purposes of s21(1)(a) TCGA. Judge Jones similarly considered that the FTT had not arguably erred in its analysis that a beneficial interest in such rights was likewise incorporeal property or an asset.

Mr Tenconi subsequently sought permission before the Administrative Court to judicially review Judge Jones’ refusal of permission. That application was out of time and the Administrative Court declined to extend the time limit. Mr Tenconi’s subsequent application to the Court of Appeal for permission to appeal the Administrative Court’s refusal decision was also unsuccessful. As we set out below, Mr Tenconi refers to what was said in the permission refusal decision in advancing his case before us.