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Vodafone's Tax Appeal Rejected By UK Supreme Court,
by Robin Pilgrim, LawAndTax-News.com, London
Wednesday, January 06, 2010
In a little-publicized ruling, the UK Supreme Court has refused to hear a legal
appeal launched by mobile telecommunications firm Vodafone against a GBP2.2bn
(USD3.5bn) claim by HM Revenue and Customs (HMRC) for unpaid corporation tax
relating to its takeover of German telecoms company Mannesman in 2000.
In its decision, the Supreme Court, which replaced the House of Lords as the
UK's highest court last year, ruled that Vodafone could not pursue its case,
which argued that a previous European Court of Justice ruling should allow it
to ignore rules which HMRC uses to stop groups paying tax on overseas profits
at lower rates than the UK corporate tax rate.
The case dates back to 2002, after Vodafone set up Vodafone Investments Luxembourg
Sarl (VIL) to dispose of its shares in Mannesman. VIL is also used to circulate
cash and profits around the group, and as a vehicle to fund other acquisitions.
The case rested on the court’s interpretation of the UK’s controlled
foreign companies (CFC) regulations. These rules seek to ensure that the group
pays tax at no less than the UK tax rate, even if the subsidiary is tax-resident
in a jurisdiction with a very low tax rate.
In May 2009, the Court of Appeal overturned a decision by the High Court in
2008 that Vodafone did not have to pay UK corporation tax on income attributed
to VIL.
The Court of Appeal argued that the UK’s CFC law should be interpreted
as if it had a new exception for companies established in the European Economic
Area (EEA) which carry on ‘genuine economic activities’ there, meaning that the CFC rules would still apply to companies operating outside the
EEA and also to EEA companies without genuine economic activities.
According to law firm McGrigors, the Supreme Court's decision to throw out
the case was unexpected, as most tax specialists had anticipated that, given
the potential ramifications of the case, the Supreme Court would review the
matter.
“This shows that the Supreme Court will not hear cases simply because
of the amounts at stake," observed Rupert Shiers, a partner at McGrigors.
Shiers added that Vodafone had won a "convincing" victory in the
High Court in 2008 and can be "entitled to be surprised and very disappointed
not to be allowed their day in court”.
“HMRC will see this as a major victory," he noted. "They were
shocked to hear people arguing that once the ECJ intervenes to say that a piece
of legislation is not quite right, the whole legislation is poisoned and it
simply falls away. The courts have now said very clearly that you should just
cut out the infection and leave the healthy parts intact.”
"The downside is that HMRC may now go back to making every effort to ignore
decisions from the ECJ," Shiers concluded.
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