FTT confirms that transfer of assets abroad code is contrary to EU law

In its recent decision in Fisher v HMRC [2014] UKFTT 804 (TC) the FTT confirmed that the transfer of assets abroad code (Chapter 2, Part 14 ITA 2007) is contrary to the rights to freedom of establishment and free movement of capital enshrined in the Treaty on the Functioning of the European Union.

Stephen Brandon QCRory Mullan and Harriet Brown all of Tax Chambers, 15 Old Square represented the taxpayers in the appeals. (Oliver Marre, also of Tax Chambers, 15 Old Square acted for HM Government of Gibraltar which had sought to intervene in the appeal.)

This case will have a significant impact on all outstanding TOAA matters involving the “old” TOAA motive defence and TCGA1992 section 13 cases involving matters before a motive defence was added there.

The FTT  found for the third Appellant on the grounds that as an Irish national she could rely on EU rights which would otherwise be infringed by the tax charge.

 The FTT had found against the taxpayers on the issue of the motive defence but allowed appeals for certain years on the grounds that discovery assessments issued by HMRC were defective. This is the second time this year that Tax Chambers has succeeded before the FTT on the notoriously difficult TMA 1970 section 29(6).

A full copy of the judgment is attached below.

Fisher - ToAA