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Case law update

This document is an update on recent developments in tax treaty case law focusing on key treaty provisions and evidentiary issues. It covers significant cases involving HMRC, such as Smallwood v. HMRC and Bayfine UK v. HMRC, highlighting topics like residency ties, elimination of double taxation, and fundamental rights under the European Convention on Human Rights. Legal practitioners are advised to seek specific legal advice tailored to individual circumstances as this summary is not exhaustive.

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Case law update

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  1. Case law update Liesl Fichardt Jonathan Schwarz Partner Barrister Berwin Leighton Paisner Temple Tax Chambers

  2. Recent treaty issues • Application of treaty provisions • Evidentiary issues • Fundamental rights blplaw.com

  3. Treaty cases • Smallwood v HMRC [2009] EWHC 777 (Ch) • Laerstate BV v HMRC [2009] UKFTT (TC) • Hankinson v HMRC [2009] UKFTT 384 (TC) • Bayfine UK v HMRC [2010] EWHC 609 (Ch) • Swift v HMRC [2010] UKFTT 88 (TC) • FCE Bank Plc v HMRC [2010] UKFTT 136 (TC) • R (application Prudential plc) v Special Commissioner of Income Tax [2009] EWHC 2494 • R (application Huitson)v HMRC [2010] EWHC 97 blplaw.com

  4. How treaties work • Smallwood – UK-Mauritius treaty • Art 4(3) Tie-breaker for non-individuals • Art 13(4) Capital gains general rule • Bayfine – UK-US treaty (1975) • Art 1(3) & (4) Saving • Art 23 Elimination of double taxation blplaw.com

  5. Evidentiary issues • Hankinson – UK-Netherlands treaty • Art 4(1) Resident of a contracting state • Swift – UK-US treaty (1975) • Art 23(2) Elimination of double taxation • Memec [1988]STC 754 • separate legal existence? • issued share capital? • business carried on by entity or members? • members entitled to share profits or separate decision to make distribution • members responsible for debts? • assets beneficially owned by entity? blplaw.com

  6. Fundamental rights • FCE Bank- UK-US treaty (1975) • Art 24(5) • Prudential - ECHR • Art 8 ? • Huitson ECHR • 1st Protocol, Art 1 blplaw.com

  7. Case law update: Treaties and fundamental rights Liesl Fichardt Jonathan Schwarz Partner Barrister Berwin Leighton Paisner Temple Tax Chambers This document provides a general summary only and is not intended to be comprehensive. Specific legal advice should always be sought in relation to the particular facts of a given situation. 13374884

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