Revenue and Customs & Anor v Ben Nevis (Holdings) Ltd & Ors [2012] EWHC 1807 (Ch) (20 July 2012)

Revenue and Customs & Anor v Ben Nevis (Holdings) Ltd & Ors [2012] EWHC 1807 (Ch) (20 July 2012)

Article 25A of the UK-RSA Double Tax Convention, as amended by the 2010 Protocol and given effect by Order in Council, applies to all revenue claims as defined, subject only to the qualifications within Article 25A and the requirement that requests for assistance are made after the Protocol's entry into force;...

Source-derived case information.

Citation
[2012] EWHC 1807 (Ch)
Parties
Claimant: Commissioners for Her Majesty's Revenue and Customs; Claimant: Commissioner for the South African Revenue Service; Defendant: Ben Nevis (Holdings) Limited; Defendant: Metlika Trading Limited; Defendant: HSBC Trustee (Guernsey) Limited
Jurisdiction
England and Wales
Judgment Date
20 July 2012
Procedural Posture
Civil / Interlocutory Applications: Jurisdiction Challenge, Freezing Order Challenge
Outcome
Jurisdictional challenge dismissed; freezing order continued.
Legal Topics
Mutual Assistance in Tax Collection, Double Taxation Convention, Freezing Orders, Jurisdiction, Revenue Rule, Retrospectivity, Ultra Vires, Human Rights
International Tax Law Insolvency Law Civil Procedure Mutual Assistance in Tax Collection Double Taxation Convention Freezing Orders Jurisdiction Revenue Rule +3 more

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Parties

Commissioners for Her Majesty's Revenue and Customs

Claimant

Commissioner for the South African Revenue Service

Claimant

Ben Nevis (Holdings) Limited

Defendant

Metlika Trading Limited

Defendant

HSBC Trustee (Guernsey) Limited

Defendant

Procedural Posture

Civil / Interlocutory Applications: Jurisdiction Challenge, Freezing Order Challenge

Legal Issues

  1. 1 Does Article 25A of the UK-RSA Double Tax Convention permit enforcement of RSA tax debts in the UK for years prior to the Convention's entry into force?
  2. 2 Is the Order in Council giving effect to Article 25A ultra vires or impermissibly retrospective?
  3. 3 Is SARS properly a party to the proceedings?

Ratio Decidendi

Article 25A of the UK-RSA Double Tax Convention, as amended by the 2010 Protocol and given effect by Order in Council, applies to all revenue claims as defined, subject only to the qualifications within Article 25A and the requirement that requests for assistance are made after the Protocol's entry into force; Article 27 of the 2002 Convention does not limit the temporal scope of Article 25A; the Order in Council is not ultra vires and does not offend the presumption against retrospectivity; the jurisdictional challenge fails.

Court Disposition

Jurisdictional challenge dismissed; freezing order continued.

Orders

  • Permission to serve out of jurisdiction confirmed.
  • Tax Recovery Claim and IA Claim may proceed.