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UT (Tax & Chancery) UT-2023-000031 - [2024] UKUT 00168 (TCC)
Fecha: 13-Mar-2024
Ground 2 – the FTT erred in concluding that it was bound by Berry v HMRC [2011] STC 1057 ([157]) given that the approach of Lewison J (as he then was) in Berry was inconsistent with the correct approa
Ground 2 – the FTT erred in concluding that it was bound by Berry v HMRC [2011] STC 1057 ([157]) given that the approach of Lewison J (as he then was) in Berry was inconsistent with the correct approach to statutory construction explained in UBS
The FTT Decision
At [157] the FTT stated:
…Notwithstanding the aforesaid, I am bound by the Upper Tribunal in Berry, which is concerned directly with para 14A Sch 13 to FA 1996 as relevant to the present case, unlike Campbell which was concerned with para 2 of Sch 13, and which had been repealed by the relevant time when the Scheme was implemented. Against the backdrop of Berry UT, I now come to the most difficult part of this decision, which is to decide whether the concept of ‘loss’ in sub-para 14A(1) of Sch 13, nevertheless, has a notional element to it.
- Heading
- Introduction
- Grounds of Appeal
- Factual findings of the FTT
- The Law
- Discussion and Analysis
- Ground 3 - the FTT erred in concluding that “the amount payable on the transfer” as found in paragraph 14A(3) Schedule 13 FA 1996 was a commercial concept ([166] and [171]), with “transfer” to be give
- Our Analysis
- Our Analysis
- In my judgment
- The principle is twofold; and it applies to the interpretation of any statutory provision
- Ground 2 – the FTT erred in concluding that it was bound by Berry v HMRC [2011] STC 1057 ([157]) given that the approach of Lewison J (as he then was) in Berry was inconsistent with the correct approa
- The Appellant’s argument
- Our Analysis
- The principles that I derive from Berry are therefore as follows
- The FTT stated at [176]
- Conclusions