The Law is not an ass. It is a quadruped, designed by a committee, who, over many years and many different committee members, cannot quite recall whether they were designing a camel, a horse or a spaceship.
- Hands up all those who believe the Rule of Law is important?
- Hands up (in Magna Carta year) all those who think the Law should be applied consistently?
- Hands up all those who believe that professional tax advice should be clear and based on proper interpretation of the Law?
Hopefully, I have everyone’s hands up for each question? At least mentally? Those too embarrassed to react or having a quiet lunch snooze should, I hope, still have made a genuine twitch towards acceptance. If not, please say. I genuinely would be interested to know why.
I now move on to the recent cases of Gemsupa and Trigg. They would make a superb exam question in terms of ‘compare and contrast’.
In Gemsupa, the Courts agreed with the taxpayer that the CGT legislation was so clear that, even though various steps were taken for tax avoidance purposes, this did not meant that they were ineffective legally (the case was pre-GAAR so query whether those new rules may have an impact?)
Trigg(onometry) and Lawyers
The Trigg case heard in the First Tier Tribunal concerned the definition of Qualifying Corporate Bonds for tax purposes. This may sound esoteric and technical, but in fact they raise some very interesting issues. [Remember ‘Tax is Fun’].
Amongst the reasons the case is interesting is that it may have an impact on both future and historic Commercial, Corporate Sale and Purchase agreements where some of the consideration is deferred in the form of loan notes. As will be generally known, (at least in esoteric tax and legal circles) the loan note form of deferred consideration makes a profound different on the way it is taxed.
In Trigg, HMRC lost, which seems to have widened the definition of QCBs. This could have a profound impact on Sales and Purchase Agreements so Solicitors need to beware!
Having reviewed many Sales and Purchase agreements over the years, I fear that sometimes matters may be glossed over. Perhaps so because of infrequent HMRC review of the detailed documentation? This is understandable, from a commercial perspective. A precedent has worked in the past, so just tweak it?
The ‘purposive’ approach in Trigg contrasts with the legalistic interpretation adopted by Gemsupa. Which is correct? Which ought to be correct? Bearing in mind most of us just wish to get commercial deals done to help business people achieve their commercial objectives, how many professionals believe the objectives suggested in 1-3 above are being achieved?
As they used to say in exam questions – Discuss!