“… that it was permissible for the First-tier Tribunal to treat the composite transaction entered into by Mr Degorce as involving a simple purchase of an income stream. The UT recorder [63] but did not engage with Mr Degorce’s key argument that not does not follow from (a) the fact that his acquisition of the rights and his disposal of them for an income stream were part of a composite transaction in which Mr Degorce began with money and ended with an income stream and (b) one can ignore for all purposes the intermediate step of purchasing and disposing of the rights. To do so is (c) to misconstrue the so-called Ramsay line of cases. And (d) there is nothing antithetical to trading in either purchasing and disposing of an asset in a single transaction or disposing of an asset for an income stream. To approach Mr Degorce’s transaction as the purchase of an income stream is to err in law.”
“The First-tier Tribunal has not taken a consistent approach to the question when a composite transaction is a trade; that question arises with great frequency; and there is a need for guidance.”
“… the Supreme Court is due to hear (in a rolled up permission and appeal hearing) argument on points equivalent to the Jones issue and the Trade issue … in April 2016, and it is considered that it would assist the parties and the Court of Appeal to have the benefit of any such decision of the Supreme Court in advance of the Court of Appeal hearing of this appeal.”
“… it is HMRC’s case in the CA that the UT Decision discloses no error of law. Reduced to its essentials, App’s appeal to the CA is an Edwards v Bairstow challenge to the FTT Decision.”
“The tax year 2007-08 year under appeal in [the present case] also concerned the same … scheme the appellant entered into in the tax year 2006-07. Given the clear overlap in terms of facts and issues in the Appellant’s continuing activities HMRC respectfully submit that the outcome of the appeal to the Court of Appeal should assist the parties’ stance in relation to [the present appeal]. The requirement for HMRC to produce a statement of case is thus premature given the similarity of the issues in dispute in both appeals.”
“I start by reminding myself of the proper approach to be adopted in considering whether to grant a stay in the absence of agreement between the parties. Although neither party referred to it, I consider that the correct approach is to be derived from Revenue and Customs Commissioners v RBS Deutschland Holdings GmbH[2007] STC 814 where the Court of Session as the Court of Exchequer in Scotland held (at [22]) that a tribunal or court might sist, or stay, proceedings against the wish of a party if it considers that a decision in another court would be of material assistance (not necessarily determinative) in resolving issues before the tribunal or court in question, and that it is expedient to do so.”
“Furthermore, at page 8 of the decision, the Tribunal made a pronouncement to the effect that it would sist proceedings against the wish of one of the parties pending a decision in another court only where that decision would be determinative of the issues before the Tribunal. We do not recognise that proposition as one reflecting normal practice in relation to the exercise of a discretion to sist. As we would see it, a Tribunal or court might sist proceedings against the wish of a party if it considered that a decision in another court would be of material assistance in resolving the issues before the Tribunal or court in question and that it was expedient to do so.”
“The question is not whether the determination of another court might provide assistance, but whether it will provide material assistance.”
“Where issues of law alone remain in dispute it can be seen that the imminent consideration of the position under EU law could justify a stay of the appeal proceedings. But the same does not hold good where the facts remain to be determined. Many of the questions raised in the references are themselves fact-specific. Accordingly, I do not consider that it would be expedient to order a stay in circumstances where the facts remain to be found by the first instance tribunal.”
“… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
“… The question whether a person is carrying on a trade is, as we have indicated, essentially a question of fact and, as Sales J pointed out in Eclipse Film Partners, at [47], there is already copious guidance at the highest level, to which it would be presumptuous of us to seek to add, on the approach which must be adopted.”