UT/2024/000060 - [2025] UKUT 00143 (TCC)

On this basis the application of Example One to the present case is straightforward. It is not in dispute that the Claimant was aware of the Dividends on the Expiry Date. Nor is it in dispute that the Deficit Claim could have been made if the Dividends had been brought into the charge to tax, as they were in the Original Return. In these circumstances Example One does not apply.

Mr Firth sought to make something of the somewhat inapt terms in which paragraph 22 of the Decision was phrased. This is not however a case where the Decision is challenged on the basis of a failure to give reasons.

He also submitted, as indicated above, that the reasoning in the Decision did not in fact adopt the construction of Paragraph 10 which HMRC now advance. Although it is not clear to us that the test Ms Murphy adopted was the same as the test we have determined as correct, the issue of which test she in fact applied is not one which we consider we need to decide in the circumstances of this case. Even if the analysis was that HMRC did, in its Decision, go wrong in their construction of Paragraph 10, it is clear that HMRC were right, if one applies the correct construction of Paragraph 10, to conclude that Example One did not apply. In other words a decision applying the correct construction would inevitably lead to the same conclusion that Example One did not apply.

For all the above reasons our conclusion is that Ground One fails.