Upper Tribunal Tax and Chancery Chamber

UT (Tax & Chancery) UT-2023-000031 - [2024] UKUT 00168 (TCC)

Fecha: 13-Mar-2024

Our Analysis

Our Analysis

70.

Ground 1 comprises three elements:

(i)

that Campbell was central to the Appellant’s case ([112]);

(ii)

that Campbell was the authority most relied upon by the Appellant ([170]), and

(iii)

that the dispute between the parties in their construction of the meaning of “loss from the discount on a strip” under sub-paragraph 14A(1) Schedule 13 of the FA 1996 exemplified the commercial/legal dichotomy in Campbell ([157]).

71.

Taking Ground 1 (i) and (ii) together, the Appellant’s point seems to be that the FTT erred in viewing the case of Campbell as central or key to his case (at [112] and [170]). We do not accept this.

72.

First, Campbell did feature significantly in the Appellant’s argument before the FTT and UT.

Before this Tribunal, four pages of the Appellant’s skeleton argument contained direct quotations from Campbell. Ms Nathan KC expressly submitted in relation to ground 3 that “[t]he FTT should have followed the approach of the Special Commissioners in Campbell” and had failed to pay close attention to the statutory language.

73.

Before the FTT, the position was similar. The case of Campbell was cited in the Appellant’s FTT Skeleton Argument dated 30 August 2021 (at [68(b)]) in a section headed “Correct Approach to Statutory Construction”; and Campbell played a prominent role in the oral presentation of the Appellant’s case before the FTT.

74.

On a fair reading of the Appellant’s written and oral submissions before the FTT, and the Decision itself, there is nothing in Ground 1 (i)-(ii). Campbell was particularly relied on in the articulation of the Appellant’s case before the FTT in the present matter. This not a basis to overturn the Decision unless it led to an error in the FTT’s statutory construction. For the reasons we have addressed in Ground 3, there was no such error.

75.

Second and in any event, we consider that the FTT Decision – a thorough written judgment running to over 60 pages – discloses a careful and nuanced analysis of the case law including Campbell. That analysis appears, among other places, in the section of the Decision headed “The cases of Campbell, Berry, Andrew and Pitt” (beginning at [111]), as well as in the later section of the Decision headed “Conclusions” (beginning at [149]) where the FTT quotes (Decision at [168]) the very passage from Campbell ([79]) which the Appellant emphasises.

76.

In so doing, the FTT was following the approach of:

Mr Justice Lewison in Berry (himself following the approach of the Court of Appeal in Astall v Revenue and Customs Commissioners [2009] EWCA Civ 1010 (“Astall”) at [41]-[42] and [44]-[45] (Berry at [36]));

Judge Greenbank in Andrew; and

Judge Beare in Pitt v Revenue and Customs Commissioners [2022] UKFTT 00222 (TC) (“Pitt”).

77.

Each of these three decisions recognised that Schedule 13 FA 96 is not immune to what was referred to in Berry as “the Ramsay principle”, the Ramsay principle being a general principle of statutory construction applicable to any statutory provision.

78.

In Berry Lewison J summarised the Ramsay principle as followsat [31](i)-(ii)]: