Upper Tribunal Tax and Chancery Chamber

UT (Tax & Chancery) UT-2024-000113 - [2025] UKUT 00165 (TCC)

Fecha: 08-Abr-2025

HMRC’s case in outline

HMRC’s case in outline

103.

In their cross-appeal HMRC submit that the FTT erred in law at [72]-[74] by deciding that the claim to share loss relief was made in the Appellant’s 05-06 return. They contend that the claim to share loss relief was made outside, or on the face of, the return rather than in the return. Mr Carey argued:

(1)

The share loss relief claim is not a claim which can affect the amount of tax chargeable and payable for the earlier year. The relevance of the earlier year is that the amount of the claim is calculated by nominally deducting the relief given from income in that earlier year, but it does not affect the tax chargeable and payable in that earlier year. According to HMRC v Cotter [2013] UKSC 69, as it does not affect the tax chargeable and payable in that earlier year, it is not a matter that may be included “in” the return for that year. The Appellant was obliged to include the claim in the tax return for the later year as it was a claim which related to the later year (para 2(3), Schedule 1B TMA 1970).

(2)

The Appellant as a matter of fact made the claim on the face of his return for 05-06. Such a claim was not made “in” the Appellant’s tax return for that year. By virtue of s.42(11) TMA, Schedule 1A applied to the claim.

104.

He submitted that the FTT erred and was not bound to follow Derry CA for each of the following reasons:

(1)

A decision of the Court of Appeal, such as Derry CA, on a point which has later been considered by the Supreme Court and expressly stated not to arise for decision is not binding according to the ordinary rules of precedent. In Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 (“Al-Mehdawi) at 881F per Taylor LJ, the Court of Appeal decided that decisions of the Court of Appeal were not binding “where the House of Lords, in giving the final decision of a case, expressly indicates that on the true facts, the issue resolved by the Court of Appeal did not require to be decided.”