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In this subsection surplus advance corporation tax in relation to any accounting period of a company, means advance corporation tax which cannot be set against the companys liability to corporation tax for that period because the company has no profits charged to corporation tax for that period STA |
The surplus ACT could also be carried forward automatically under section 239(4) which provided: Where in the case of any accounting period of a company there is an amount of surplus advance corporation tax which has not been dealt with under subsection (3) above, that amount shall be treated for the purposes of this s... |
Section 239(5) explained how the set-off operated under both subsections (1) and (4). STA |
It provided: Effect shall be given to subsections (1) and (4) above as if on a claim in that behalf by the company and, for that purpose, a return made by the company under section 11 of the Management Act containing particulars of advance corporation tax or surplus advance corporation tax which falls to be dealt with ... |
Company A could also surrender its ACT to its subsidiary in accordance with section 240, with the result that the ACT would be treated as ACT paid by the subsidiary and set against the subsidiarys liability to pay MCT. STA |
HMRCs case is simple. ARG |
They argue that if a taxpaying company included relevant details of ACT paid in its tax return, sections 239(1) and (5) mandated an automatic set-off of the ACT against the companys liability for MCT. ARG |
If, on a proper understanding of the law, the company did not owe sufficient MCT in the relevant accounting period, the ACT remained surplus and available to be set off in the next accounting period under section 239(4). ARG |
In other words, HMRC argue that the law treats an unlawful MCT charge as a nullity, with the result that there is no set off under section 239(1) and no enrichment of HMRC by the payment of the ACT, which remained available to offset the taxpaying companys lawful MCT in other accounting periods. ARG |
PAC opposes the grant of permission to HMRC on this issue and submits that it is a detailed issue of computation which is likely only to affect the appeal in PACs case if PACs approach to Issue V is correct. ARG |
If this court were to give permission to appeal, PAC advances three arguments. ARG |
First, it submits that the courts approach should be governed by the principle that the taxpayer should be entitled to recover unduly levied tax. ARG |
Secondly, it argues that, because the CJEU has characterised ACT as nothing more than a payment of corporation tax in advance (eg FII ECJ I para 88), ACT could only lawfully be charged where it is itself a pre-payment of a lawful charge to MCT. ARG |
As a result, it contends that the correct analysis is that a payment of ACT, which is subsequently set against an excessive liability to MCT, is an advance payment of an excessive tax liability and is itself the payment of an excessive tax liability. ARG |
As such, it is liable to be recovered in a claim in restitution. ARG |
Alternatively, PAC contends that the payment of the ACT relates directly to the unlawfully levied MCT and so is recoverable in a claim in restitution. ARG |
In support of those contentions PAC relies on dicta of the CJEU in FII ECJ I and FII ECJ II. ARG |
PACs third argument is that, if it had been aware that it did not have any liability for a substantial part of the MCT, it would have not have paid the ACT. ARG |
PAC was a subsidiary of Prudential plc and it had no subsidiaries of its own which generated profits giving rise to a liability to corporation tax against which PACs ACT could have been used. ARG |
It would therefore have paid dividends to its parent company within a group income election so that the ACT was paid at the level of the parent company and would have been available for set-off against the MCT of other subsidiary companies within the group. ARG |
This, it submits, would have been the only sensible course to avoid the ACT being stranded in PACs accounts. ARG |
Analysis Ratio |
In our view it is appropriate to give HMRC permission to raise this issue as it is a point of law of general public importance in an appeal to this court in the context of a group litigation order. Ratio |
While PAC submits that it alone is likely to be affected by the determination of this issue, the court is not in a position to assess whether or not that is so. Ratio |
The matter also arises in the FII litigation. Ratio |
HMRC had applied for permission to appeal the Court of Appeals ruling on this issue in FII CA but the determination of that application was postponed by this court by orders dated 8 November 2010 and 9 May 2017. Ratio |
The issue, which will be of relevance to the final determination of the FII litigation, therefore comes to this court in this appeal before this court has addressed the application to appeal in that litigation. Ratio |
In addressing this issue, the starting point is to recall that an entitlement to repayment or restitution in this context requires that there has been an unlawful charge to tax as a result of incompatibility with EU law: San Giorgio. Ratio |
The question we are asked to consider is in substance: have HMRC unlawfully levied ACT by setting it against MCT which has been unlawfully charged? But there is a logically prior question, which is whether there has been any set-off. Ratio |
Company A may have received income which has funded its distribution from UK-resident companies and also from companies resident elsewhere in the EU. Ratio |
In this computational issue the court is not concerned with unlawful ACT, which has been charged on a distribution by company A derived from income which it has received from an overseas-resident company in the absence of sufficient credit for foreign tax on the latter companys distributions. Ratio |
We are concerned with ACT which is unquestionably lawful but which has purportedly been set against an unlawful MCT charge on company A. Ratio |
PAC relies on dicta in FII ECJ I and FII ECJ II to argue that this prima facie lawful charge on company As dividend is tainted by its being merely an advance payment of an unlawful MCT charge. Ratio |
But the CJEU, when it characterised ACT as constituting a form of advance payment of corporation tax (FII ECJ I para 88 and FII ECJ II paras 68 and 110), was well aware of the provisions of ICTA which allowed the taxpaying company to utilise the ACT which it had paid in different ways. Ratio |
Thus, in FII ECJ II at para 6, the CJEU stated: A company had the right to set the ACT paid in respect of a distribution made during a particular accounting period against the amount of mainstream corporation tax for which it was liable in respect of that accounting period, subject to certain restrictions. Ratio |
If the liability of a company for corporation tax was insufficient to allow the ACT to be set off in full, the surplus ACT could be carried back to a previous accounting period or carried forward to a later one, or surrendered to subsidiaries of that company, which could set it off against the amount for which they the... |
(The reference to the surrender of ACT to a subsidiary is a reference to section 240 of ICTA.) Ratio |
As we have shown, section 239 of ITCA did not confine the MCT, against which the ACT could be set, to MCT due for the same accounting period as that in which the ACT was paid (the same accounting period). Ratio |
If there was insufficient MCT due in the same accounting period, the surplus ACT was carried forward automatically to the next accounting period, unless company A elected to use it otherwise, such as by carry back under section 239(3). Ratio |
If the company did not so elect, and if in the same accounting period and subsequent accounting periods company A did not have sufficient MCT to use up the ACT which it had paid, or if Company A did not surrender the ACT under section 240, the ACT was, in PACs words, stranded. Ratio |
But that stranding of the ACT, were it to have occurred, would not affect the lawfulness of the ACT charge. Ratio |
In our view, HMRC are correct in their submission that, if an apparent charge to MCT was unlawful, that charge was a nullity. Ratio |
The ACT could not have been set against a nullity but remained available to be carried back if a claim were made under section 239(3) or for automatic set-off against lawful MCT in a subsequent accounting period under section 239(4) or otherwise to be utilised. Ratio |
Being so available, the lawful ACT did not directly relate to the unlawful MCT in the same accounting period in the sense that penalties and interest may relate to an unlawfully levied tax. Ratio |
Accordingly, HMRC in receiving payment of the lawful ACT did not receive unlawfully levied tax which gave rise to a San Giorgio claim. Ratio |
Further, PAC was obliged by ICTA to pay the lawful ACT. Ratio |
The payment of the ACT did not entail a defective transfer of value which falls to be corrected: the ACT was due when it was paid, and was available to PAC to utilise thereafter. Ratio |
PACs loss in the context of Issue III (ie in relation to lawful ACT) is the result of the levying of unlawful MCT, and, through the misunderstanding of the law which it shared with HMRC, of its not having been able to set the unutilised ACT against its liability for lawful MCT in the same or other accounting periods or... |
Its loss in that sense does not support a claim in restitution: Investment Trust Companies v Revenue and Customs Comrs, especially paras 41-45 per Lord Reed. Ratio |
We are informed that PACs corporation tax liabilities in its accounting periods from 1994 to 1998 are not finalised as PACs returns in those years are still open and that therefore it may be possible for PAC to carry forward unutilised ACT to set against its MCT liabilities in those periods. Ratio |
But, whether or not that is the case, in agreement with Henderson J in FII High Court 1 ([2008] EWHC 2893) we consider that an enquiry into whether, and if so how, surplus ACT would otherwise have been used within a group of companies cannot give rise to a claim in restitution but would form part of a claim for damages... |
We therefore, in agreement with Henderson J in the FII litigation, answer the question raised in Issue III (Does a claim in restitution lie to recover lawful ACT set against unlawful corporation tax?) in the negative. Ratio |
Issue V Ratio |
PAC seeks permission to cross-appeal if (as we have done) we grant HMRC permission to appeal on Issue III. Ratio |
Again, the issue arises in the context of a GLO and we are unable to assess its significance in other cases within the GLO. Ratio |
But it is closely connected with Issue III and has significant consequences for PACs claim for interest. Ratio |
It is appropriate that we address it in the context of this appeal. Ratio |
We therefore grant permission for the issue to be raised. Ratio |
Issue V comprises two related questions concerning the utilisation of ACT on a hypothesis that an undifferentiated fund of lawful and unlawful ACT was purportedly set off against an amount of MCT which was in part lawful and in part unlawful. Ratio |
The first question (Issue V(a)) which the parties have raised is: Where ACT from a pool which includes unlawful and lawful ACT is utilised against an unlawful corporation tax liability, is the unlawful ACT regarded as a pre-payment of the unlawful corporation tax liability or is the ACT so utilised regarded as partly l... |
PAC contends that the unlawful ACT which company A has paid is to be regarded as utilised first against the unlawful MCT. Ratio |
HMRC have argued for a pro rata approach by which the unlawful MCT is regarded as having been met by the utilisation of lawful and unlawful ACT in the same proportion as the unlawful MCT bears to the overall MCT charge. Ratio |
The background is that in so far as unlawful ACT has been utilised against lawful MCT, HMRC have conceded that the time value of the prematurely-paid ACT is recoverable in compound interest, as explained earlier in the discussion of Issue II. Ratio |
In so far as the unlawful ACT has purportedly been utilised against unlawful MCT, the unlawful ACT which the taxpaying company has paid is recoverable together with interest under section 35A of the 1981 Act, as explained in relation to Issue II, as both the ACT charge and the MCT charge were nullities. Ratio |
Henderson J in his second judgment in this case ([2015] EWHC 118 (Ch); [2015] STC 1119) addressed this issue at paras 34-37. Ratio |
He expressed an initial inclination to adopt the pro rata approach as everyone at the time had assumed that the whole of both the ACT and the MCT had been lawfully charged. Ratio |
He decided however that PACs approach was correct because, if the unlawful ACT was regarded as a prepayment of the unlawful MCT, the end result reflected precisely the credit for foreign tax which EU law required, whereas on HMRCs approach company A would have an additional and unnecessary claim to recover the element ... |
His ruling was made expressly on the basis that he was bound by the Court of Appeals ruling on Issue III above, a ruling which we have now overturned. Ratio |
The Court of Appeal (paras 113-127) disagreed with Henderson Js approach. Ratio |
It stated that the issue was how to determine the extent of the benefit for HMRC in money terms from the payment or bringing into account of an unlawful MCT charge for the purpose of determining the extent of HMRCs unjust enrichment. Ratio |
The court looked for a fair way of determining that enrichment in a situation where an undifferentiated fund of lawful and unlawful ACT had purportedly been set against an apparent liability to MCT, which in fact comprised both lawful and unlawful MCT. Ratio |
The court attached weight to the fact that both PAC and HMRC were unaware of the meaning and effect of the relevant EU law at the time; neither was to blame for the situation; both were disabled by their ignorance of the true state of affairs from applying their minds at the time to the allocation of lawful and unlawfu... |
As a result, the court sought to strike a fair balance between their interests by adopting an objective standard. Ratio |
That standard was the pro-rating approach which Henderson J had earlier favoured in his judgment in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2014] EWHC 4302 (Ch); [2015] STC 1471 (FII (High Court) Quantification), para 205. Ratio |
We are not able to reconcile the Court of Appeals ruling with our decision on HMRCs appeal on Issue III, which is inconsistent with the ruling in FII CA by which the Court of Appeal in this case was bound. Ratio |
As HMRC have submitted and we have held under that issue, section 239 has the effect that lawful ACT is not set against unlawful MCT, which is a nullity. Ratio |
The pro rata method, which involves unlawful MCT being met in part by unlawful ACT and in part by lawful ACT, cannot therefore work. Ratio |
Instead, lawful ACT, which was not utilised against lawful MCT, remained available to be claimed against lawful MCT in the same or other accounting periods. Ratio |
The unlawful ACT, which company A paid, was not set against the unlawful MCT charge in a given accounting period because both the unlawful ACT charge and the unlawful MCT charge are nullities. Ratio |
The principled answer is therefore that the unlawful ACT, which company A has paid, must be treated as having been utilised first against the unlawful MCT charge. Ratio |
Where there is no unlawful MCT against which to set the unlawful ACT which has been paid, the residual unlawful ACT is to be treated as utilised against lawful MCT. Ratio |
Because both of the unlawful charges are nullities, the unlawful ACT is itself recoverable, unless it has been set against a lawful MCT charge. Ratio |
When unlawful ACT has been set against lawful MCT, company A has a claim for interest on the ACT so used, as stated in para 78 above. Ratio |
The second question under Issue V relates to the carry back to an earlier quarter of domestic FII received in a later quarter in the same accounting period. Ratio |
To address this, it is necessary to explain the operation of paragraph 4 of Schedule 13 to ICTA. Ratio |
Rather than set out the provision we gratefully adopt the explanation of its effect which Henderson J gave in FII (High Court) Quantification at para 209: The effect of these rather densely worded provisions may be summarised by saying that FII received in a later quarterly return period must first be applied in franki... |
If there has been a change of ACT rates in the meantime, the repayment is not to exceed the amount of the tax credit comprised in the FII which is carried back. Ratio |
If the excess FII was not so used in repayment of ACT paid in the earlier quarter, it was carried forward into the next annual accounting period to set against FPs in the same way (section 241(3)). Ratio |
Issue V(b) asks: Where domestic FII was carried back to an earlier quarter is it to be regarded as having been applied to relieve lawful and unlawful ACT pro rata or only lawful ACT? Ratio |
Henderson J in his second judgment in this case discussed the issue briefly in paras 40-43 after hearing full argument on the point. Ratio |
He decided, with considerable hesitation, that the FII was to be regarded as having been applied to relieve only lawful ACT in the earlier quarter because otherwise FII from UK-sourced dividends, which was entirely lawful, would be used to cancel out part of the credit which EU law requires on foreign income. Ratio |
In reaching this conclusion he departed from the view which he had reached on essentially the same issue in FII (High Court) Quantification at paras 207-211. Ratio |
The Court of Appeal disagreed and (paras 128-133) adopted an approach similar to that which it took on Issue V(a). Ratio |
Again, the court laid stress on the fact that at the time nobody appreciated that the ACT against which the FII was carried back might comprise both lawful and unlawful elements and no-one was to blame. Ratio |
The fair course therefore was to adopt the pro rata approach which the court had taken in relation to Issue V(a). Ratio |
The effect of that approach would be that the primary period of unjust enrichment of HMRC through receipt of the unlawful ACT would be brought to an end and HMRCs enrichment would be measured by the time value of the ACT payment. Ratio |
The court did not see this as cancelling out any part of the credit which EU law required on overseas-sourced dividends. Ratio |
In this appeal PAC renews the arguments which Henderson J favoured. Ratio |
The UK tax system was unlawful because credits were not given under section 231 for tax on overseas-sourced dividends in order to relieve an ACT liability. Ratio |
The use of carried-back FII to relieve unlawful ACT deprived company A of the credits which it should have had for the overseas-sourced dividends. Ratio |
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