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

Mr Tenconi based his substantive case on why the FTT erred in holding there was a disposal under s21 TCGA on the following central propositions.

First, he argues that the way s21 TCGA is drafted has the result that the term “assets” means “property”.(In his submission that is because the words in subsections 1(a) to (c) describe exhaustively what “all forms of property” in sub section (1) means “for the purposes of this Act”).

Second, he submits “property” has the common law meaning of property. Mr Tenconi referred to Armstrong DLW GmbH v Winnington Networks Ltd [2012] EWHC 10 (Ch) where the issue concerned the nature of carbon emission allowances as property and where the High Court referenced Lord Wilberforce’s definition in National Provincial Bank Ltd v Hastings Car Mart Ltd [1965] AC 1175 as setting out the common law definition:

“Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.”

Third, applying that definition, Mr Tenconi submits that neither the distribution rights, nor the beneficial interest in them constitute property; neither can be transferred. There being no property there can accordingly be no disposal. A disposal, Mr Tenconi says, requires an actual disposal and thereby a transfer of the property so that someone comes to own it in the fullest sense.