Court : House of Lords
..... " subsection (3) provided (apart from an immaterial amendment made by the finance act 1989): "in subsections (1) and (2) above 'derived property', in relation to any property, means income from that property or any other property directly or indirectly representing proceeds of, or of income from, that property or any income therefrom." 47. ..... the expression "derived property" seems to have appeared first in a taxing statute in section 28 of the finance act 1946, in provisions designed to charge higher rates of income tax on some categories of income covenants and other settlements of property in which the settlor retained a beneficial interest. ..... section 660a (1) and (2) provide as follows: "(1) income arising under a settlement during the life of the settlor should be treated for all purposes of the income tax acts as the income of the settlor and not as the income of any other person unless the income arises from property in which the settlor has no interest. ..... if an individual owned assets with a large unrealised gain which was likely to be realised shortly, he had an incentive to try to shelter the assets in an interest in possession settlement (if they could be put into the settlement tax-free, especially by claiming holdover relief for business assets), to have the gain realised by the trustees, and later (as a beneficiary of the settlement) to enjoy access to the proceeds. ..... chapters i and ii and part of chapter iii (including sections 683 to 685) were repealed. .....
Tag this Judgment!Court : House of Lords
..... finance act 1972 introduced advanced corporation tax (act) to our tax ..... united kingdom makes a qualifying distribution and the person receiving the distribution is another such company or a person resident in the united kingdom, not being a company, the recipient of the distribution shall be entitled to a tax credit " and section 247(2) says that where a group income election under subsection (1) is in force - " the election dividends shall be excluded from sections 14(1) and 231 and accordingly are not included in ..... of its judgment, the court referred to the athinaiki case (and the epson europe case) as establishing that " any tax on income received in the state in which dividends are distributed is a withholding tax on distributed profits for the purposes of art.5(1) of the directive where the chargeable event for the tax is the payment of dividends or of any other income from shares, the taxable amount is the income from those shares and ..... uk plc ('the uk holding company') and pirelli general plc ('the uk subsidiary') were resident in the uk; (iii) the uk holding company owned all the shares in the uk subsidiary and pirelli tyre, pirelli cable and pirelli spa ..... in which a corporate shareholder resident in the united kingdom would be entitled to payment of the tax credit; the adviser probably would have told his client to disregard subsection (2) as an unimportant exception to the general rules about franked investment income (to be found in part vi, chapter v of the 1988 act) .....
Tag this Judgment!Court : House of Lords
..... chapter iii of the 1988 act, containing sections 555 to 557 and consolidating schedule 11 of the finance act 1986, was intended not just to provide improved collection machinery but also to expand the ambit of the basic tax charge under schedule d imposed by what became section 18(1)(a)(iii) of the 1988 act. ..... well-settled presumption against a statute being construed as having extra-territorial effect (see ex parte blain (1879) 12 ch d 22) is ousted by a sufficient indication that in this case parliament did intend section 555 (2) of the income and corporation taxes act 1988 ("icta 1988") and its associated provisions (re-enacting provisions originally introduced by section 44 of and schedule 11 to the finance act 1986) to apply to a payment made by a person neither resident nor having any ..... who fulfils a prescribed description but is not the entertainer or sportsman and the payment has a connection of the prescribed kind with the relevant activity (a) the entertainer or sportsman shall be treated for the purposes of the tax acts as the person to whom the payment is made; and (b) the payment shall be treated for those purposes as made to him in the course of a trade, profession or vocation exercised by him within the united kingdom (whether or not he would ..... this requirement for the payer to deduct tax and account for it to the revenue applied whether the payment were made to the entertainer/sportsman direct or to a company controlled by the entertainer/sportsman. .....
Tag this Judgment!Court : House of Lords
..... inland revenue v payne (1940) 23 tc 610, sir wilfred greene mr discussing a somewhat more simply drafted statutory predecessor of the sections in question here, namely section 38 of the finance act 1938, said this, at p 626, in relation to a scheme whose details are not of significance for present purposes: "the word 'arrangement' is not a word of ..... income and corporation taxes act 1988 as amended by the finance act 1995. 42 ..... , trust, covenant, agreement, arrangement or transfer of assets") appeared for the first time in subsection (9)(b) of section 21 of the finance act 1936 (provisions as to income settled on children), which was capable of applying to covenanted payments as well as to the income ..... in terms of effort but (not least because of historic discrimination between the price of different kinds of services in the market place) unequal in terms of earnings for the company; (iii) they may expect that each will contribute what they can but that those contributions will vary over time, perhaps because of personal factors such as illness or child rearing, perhaps because ..... (2) a person shall be deemed for the purposes of this chapter to have made a settlement if he has made or entered into the settlement directly or indirectly, and, in particular, but without prejudice to the generality of the preceding words, if he has provided or undertaken to provide funds directly or indirectly for the purpose of the settlement, or has made with any other person a reciprocal arrangement .....
Tag this Judgment!Court : House of Lords
..... leading examples are to be found in section 33 of the taxes management act 1970 as to income tax and capital gains tax and the finance act 1998, schedule 18, para 51 as to corporation tax. ..... rely on the defence that the two groups of companies did not seek to make gie's and (para 98) "did not therefore make use of the legal remedies available to them to challenge the refusals of the tax authorities, by invoking the primacy and direct effect of the provisions of community law, where on any view national law denied resident subsidiaries and their non-resident parent companies the benefit of that taxation regime ..... wrongly paid - basis of recovery - limitation" [2005] clj 296, robert stevens, "justified enrichment" (2005) 5 ouclj 141, graham virgo, "deutsche morgan grenfell: the right to restitution of tax paid by mistake rejected" [2005] btr 281, sir jack beatson, chapter 9 ("unlawful statutes and mistake of law") in burrows and rodger (eds), mapping the law (to be published shortly) and two articles by dr james edelman, "limitation periods and the theory of unjust enrichment" (2005) ..... law of unjust enrichment; (3) english law's general readiness to permit a claimant to chose between concurrent claims; (4) the consequences of treating the woolwich principle as exhaustive and exclusive, especially as regards (i) mistake of fact (ii) limitation of actions and (iii) legal certainty of any proposed exception; and (5) the european element (which was not present in either woolwich or kleinwort benson .....
Tag this Judgment!Court : House of Lords
..... recognised this extended period should not apply to payments of tax made by mistake: see section 320 of the finance act 2004. ..... revenue pointed out that the general position under the united kingdom tax regime, both for direct and indirect taxes, is that taxpayers who pay tax late are required to pay simple interest, and taxpayers who overpay tax are entitled to repayment together with an amount based on simple ..... is a case where community law requires full restitution; (ii) the defendant is economically powerful and sophisticated and must be supposed (as the agreed "conventional basis" seems to recognise) to have taken full advantage of its premature receipts of act; and (iii) it is not suggested that the claimant has been at fault or has been dilatory in making or pursuing its claim. ..... english and australian authorities on the topic are considered in chapter 28 of mason and carter, restitution law in australia (1995) pp945-967, and in part 1 of edelman and cassidy, interest awards in australia ( ..... the most extensive treatment may be the chapter entitled "interest" by professor francis rose in birks ..... he deals in chapter 1 with the "unjust enrichment principle and its four essential elements" and, quite separately, in chapter 14 with "restitution for wrongs" where he discusses all of the cases identified in the previous paragraph of this opinion which had been ..... his introduction to chapter 14, at p 455, points out that "the distinction between restitution for wrongs and unjust .....
Tag this Judgment!Court : House of Lords
..... the starting point is section 8 of the taxes management act 1970 ("tma 1970") (as substituted by section 90 of the finance act 1990 and largely re-substituted by section 178 of the finance act 1994) which imposes on a taxpayer a statutory obligation to make a ..... in choosing the phrase "total taxable profits as submitted to the inland revenue", and parliament in enacting it in the amendments to masc, were looking towards the appropriate figure as set out in the tax return, and that the intention of parliament was to direct the process of assessment of child support in a simple and expeditious manner to that figure. ..... as submitted to the inland revenue' in paragraph 2a of part 1, chapter 2 of schedule 1 to the child support (maintenance assessments and special cases) regulations 1992 (si 1992/1815) as amended by the child support (miscellaneous ..... but the respondents accept that in view of para 3(4)(b)(i) to (iii) they could not possibly qualify as a deduction under para 3, since they are essentially adjustments made to taxable profits on account of capital expenditure on assets which, over a period, lose ..... the impermissible deductions under para 3(4)(b)(i) to (iii) (that is (i) repayment of capital on most loans (ii) capital expenditure and (iii) depreciation of capital assets) reproduce (in different words) section 74(1)(f) and (g); para 3(4)(b)(iv) (setting up or expansion of business) reproduces other parts of section 74(1)(d) and (f); and para 3(4)(b)(vi) (business entertainment .....
Tag this Judgment!Court : House of Lords
..... relying on the legislative history of section 788 of the 1988 act, namely section 347(1) of the income tax act 1952, sections 39(1) and 64(1) of the finance act 1965, section 497(1) of the income and corporation taxes act 1970, and section 100(1) of the finance act 1972 ..... . i agree that the denial of the right of election under section 247 of the income and corporation taxes act 1988 ("the 1988 act") to groups with foreign parents did not infringe the non-discrimination articles of the double taxation convention ("dtc") between the united kingdom and japan or of the ..... the us dtc, it is article 24(5) and in the japanese dtc it is article 25(3): "enterprises of a contracting state, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other contracting state, shall not be subjected in the first-mentioned contracting state to any taxation or any requirement connected therewith which is other ..... chapter v of part vi of the 1988 act, which contain sections 238 to 246, are concerned with "advance corporation ..... which the sections in chapter v of part vi of the 1988 act are expressed, section 239(1) refers to mainstream corporation tax as "liability to corporation tax on any profits charged to corporation tax", consistently with sections ..... . section iii of part 19 contains additional case management powers for glos which include directing that there shall be a group particulars of claim and specifying the details to be included .....
Tag this Judgment!Court : House of Lords
..... " the outcome was that by the finance act 1989 the domestic legislation was reshaped so as to focus zero-rating of building works more directly on social objectives: that is housing, residential communities of various sorts (such as children's homes, old people's homes and hospices) and premises used by charities for non-commercial purposes (or as a village hall). ..... group 8a was in turn restricted following the judgment of the european court of justice in commission of the european communities v united kingdom (case 416/85) [1990] 2 qb 130 by an amendment effected by the finance act 1989 to confine zero-rating in the case of protected buildings to the reconstruction and alteration of certain defined classes of residential buildings. ..... the issue is whether the expression "protected building" in item 2 of group 6 in schedule 8 to the value added tax act 1994 ("vat act 1994") includes an outbuilding which is not itself listed under the planning (listed buildings and conservation areas) act 1990 ("the 1990 act"), but is protected under that act because it is (and has been since the inception of the modern system of planning control in 1948) a structure within the curtilage of a listed building. 23. ..... so it is subject to the controls set out in chapter ii of part i of that act, which prohibit the carrying out of any works of alteration which may affect its character as a building of special architectural or historical interest unless they have been authorised. .....
Tag this Judgment!Court : House of Lords
..... adopt: "29 to develop his argument on uncertainty, mr gledhill [for dr misra] focussed our attention on art 7 of the convention, entitled 'no punishment without law' which provides: '7(1) no-one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed nor shall a heavier penalty be imposed than the one that was applicable at the time the ..... as holdsworth succinctly puts it (a history of english law, 5th ed (1942), vol iii, p 11), "the novel disseisin was directed to secure an undisturbed possession: the assize of nuisance to secure its free enjoyment. ..... " in a digest of the criminal law (1877, chapter xix, p 108) sir james stephen defined a common nuisance as " an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all her majesty's subjects ..... it seems likely that the draftsman of section 268 in chapter xiv of the indian penal code (act xlv of 1860) intended to summarise the english common law on public nuisance as then understood ..... the act lays down a detailed procedure for securing abatement, provides for criminal proceedings and prescribes maximum penalties for failure to comply with an abatement notice: see, generally, mccracken, jones, pereira and payne, statutory nuisance (2001), chapters 2, 3, 5, 8, 9 and 10 .....
Tag this Judgment!