[2025] UKUT 00005 (TCC)

Mr Downey argues that in the circumstances here where there was not a sale to a third party and the fact of disposal was agreed, the non-enforceability of the terms was irrelevant to the question of whether the contract had been formed.

Again this ground misconstrues the FTT’s reasoning. As already discussed, the FTT did not reject the appellant’s case on the basis the purported agreement had terms that were unenforceable but because it considered that as at the relevant time critical terms as to price had not been agreed. Its analysis was that that lack of certainty as to critical terms meant that a contract had not been formed (not that a contract had been formed but that certain terms were unenforceable for lack of certainty). The FTT remained focussed on the issue of contract formation not establishment of its terms. There was no error in its view that if certain critical terms such as price or price determination had not been agreed a contract had not been formed at a given point of time. The agreement that there had been a disposal did not address the question of when a contract effecting such disposal had come into existence. Also the fact the agreement in question was between the taxpayer and the company of which she was the director and sole shareholder would not make the lack of certainty as to the critical term of price / price determination any less relevant to the analysis of whether a contract had been formed at a given point of time.