Rates Avoidance Schemes

August 3rd, 2020

Appeal in the cases noted in this Bulletin on 6 November 2019 have been dismissed : (2020);EWCA Civ 1017. Asplin LJ said at para 46 : “ … the authorities do not support the proposition that a transaction should not be regarded as genuine or a scheme should be considered to be contrary to the public interest on the grounds that their effects might be considered by some to be socially reprehensible.” At para 48 she said : “ Nor can it be relevant that each of the sequence of events is pre-determined…the pre-determined use of an SPV to which assets are transferred is a familiar feature in many corporate reconstruction schemes. Taking time in advance, to decide which steps to take, cannot of itself render the steps themselves contrary to the public interest.” At paragraphs 54-57 she said that once it is accepted that a step is genuine and not a sham, “ it cannot be undermined by the motive behind its creation.” The fact that the purpose for which a transaction has been entered into can be characterised as artificial in no way invalidates the transaction if it is not a sham. The fact that a device has been adopted in order to avoid legislative consequences cannot be taken into account in construing a document to find out what the true nature of the transaction is. One has first to find out what is the true nature of the transaction and then see whether and if so how the legislation operates upon that state of affairs. Floyd and Newey LJJ agreed.

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