Hong Kong Case Law: Decisions & Judgments

Topic

Section 45 stamp duty ordinance

Legal area

Court

25 Sept 2024

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

Citation

[2024] HKCA 863
Court

Court of Appeal
Case number

CACV23/2023

The Court granted leave to appeal to the Court of Final Appeal because the intended appeal raises a reasonably arguable point of construction of s.45 Cap 117 that is of great general or public importance; the Court held that the expressions 'body corporate' and 'issued share capital' must be construed together and that the factual and legal question whether the 90% issued share capital association requirement is met as between HoldCo and an LLP is properly arguable and suitable for determination by the Court of Final Appeal.
5 Jul 2024

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

Citation

[2024] HKCA 578
Court

Court of Appeal
Case number

CACV23/2023

Section 45's expression 'issued share capital' is to be understood by reference to its established meaning in the company law context; UK/Hong Kong LLPs do not have issued share capital or company-style shares and membership interests are not issued share capital for s45 purposes. Therefore HoldCo's indirect beneficial membership interest in LLP2 does not satisfy the 90% issued share capital association requirement and s45 relief is not available; the Collector's appeal is allowed and the District Court judgment is set aside.
30 Sept 2022

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

Citation

[2022] HKDC 1078
Court

District Court
Case number

DCSA2/2021

Leave to appeal was refused because the proposed grounds had no reasonable prospect of success: the trial judge had considered context and purpose and correctly applied the ordinary and natural meaning of 'issued share capital'; the Collector's alternative contexts and anti‑avoidance purpose did not justify overturning the interpretation; the novelty of the point alone did not meet the interests of justice threshold for leave.
15 Jul 2022

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

Citation

[2022] HKDC 716
Court

District Court
Case number

DCSA2/2021

The court held that "issued share capital" in section 45 must be construed by its ordinary and natural meaning in light of the legislative purpose: capital divided into quantifiable portions (shares) as legally recognized in the jurisdiction of incorporation. LLPs can have such issued share capital where their capital is so divided and issued under their governing agreement and applicable law. The JWSLLPs each had issued share capital of GBP100 divided into GBP99 and GBP1 which were issued to members; accordingly the Appellants were "associated bodies corporate" within s45 and entitled to rel…
4 Dec 2003

THE COLLECTOR OF STAMP REVENUE v. ARROWTOWN ASSETS LTD

Citation

THE COLLECTOR OF STAMP REVENUE v. ARROWTOWN ASSETS LTD
Court

Court of Final Appeal
Case number

FACV4/2003

Applying the Ramsay purposive approach the court held the non-voting shares were created and issued solely to secure stamp duty relief and had no genuine commercial purpose; they therefore should be disregarded in calculating issued share capital under s.45(2), so the Memorandum was not relieved and is chargeable to stamp duty; additionally the Collector's arguments on outsider provision of consideration and s.45(5) were rejected on the facts but the core decisive ground was disregard of the artificially created shares.

Hong Kong Case Law

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

JOHN WILEY & SONS UK2 LLP AND ANOTHER v. THE COLLECTOR OF STAMP REVENUE

THE COLLECTOR OF STAMP REVENUE v. ARROWTOWN ASSETS LTD