Taxpayer victory in UK corporate residence case involving offshore SPVs

Since the UK Court of Appeal judgement in Wood v Holden [2006], the UK’s central management and control test has been made clearer in assessing whether an offshore company is tax resident in the UK. Wood v Holden is an authority for the following propositions:

• that a company’s directors exercise central management and control where they meet and decide business
• if the directors are “usurped” i.e. if central management and control of the business is exercised by parties other than the directors, then the usurpation displaces the meeting place of the board of directors as the company residence forum
• if the directors are subject to dictation by third parties such that the directors do not exercise independent consideration of the matters put before them for the decision, then the dictating third parties displace the meeting place of the board of directors as the company residence forum
• where third parties advise or influence the directors in their decision-making, central management and control continues to rest with the directors in their board meetings and is located where these meetings are held. This remains the case even if the third-party advisors or influencers obliquely initiate corporate activity by making requests or proposals to the directors, provided that in the course of this process the directors are not usurped or dictated.  

In Development Securities PLC & Others v HMRC, the Upper Tribunal has reversed the controversial decision of the First-tier Tribunal (FTT), to the effect that certain Jersey companies were UK resident for tax purposes. The FTT was clearly at pains to strike down or negate what today looks like unacceptable tax avoidance. However, the relevant transactions occurred in 2004, at a time when they would have been considered as mainstream corporate tax planning.

The facts of the case

Three wholly owned Jersey subsidiary companies were incorporated by Development Securities PLC (the parent company) to purchase UK property, or assets representing UK property, from various UK companies also in the Development Securities group. This was all done on professional advice from a well-known firm of international accountants. At the time of purchase, these assets were standing at a loss for capital gains tax purposes.

No indexation relief is allowed on such capital losses, and so the purpose of the Jersey companies was to enter a scheme whereby the capital losses could be increased by an indexation element. The scheme required the Jersey companies to buy the property assets at a significant over-value whilst the companies were non-UK resident i.e. centrally managed and controlled in Jersey by Jersey professional directors. Once the assets had been purchased, the residence of the three Jersey companies was simultaneously migrated from Jersey to the UK. The period of Jersey residence of the Jersey companies was transitory. According to the taxpayer, Jersey tax residence commenced on incorporation (10/6/2004) and ended on or shortly after 20/7/2004, when for UK tax mitigation reasons alone, the companies migrated their tax residence to the UK.

To acquire the properties for well above market value, the Jersey companies needed to be financed by the UK parent company, Development Securities PLC. Such funding was by way of share capital and separate capital contribution (i.e. a gift).

The boards of the three Jersey companies were comprised of three Jersey resident professional directors, and the secretary of Development Securities Ltd, who was UK resident.

Jersey board meetings

The three Jersey companies each held five board meetings in Jersey between 11 June and 20 July 2004. It was not contended that the meetings did not take place.
At the first board meeting held in Jersey on 11 June 2004, the tax planning scheme was outlined to the Jersey directors by the UK resident director, who attended the board meeting in person. It was envisaged that if the Jersey directors decided to enter into the scheme, the UK parent company would be likely to make a capital contribution and to subscribe for newly issued shares to assist in the purchase of the assets.

On 25 June 2004, the Jersey directors agreed to execute various call options over the UK property assets, having received a resolution from the UK parent company (via its nominee shareholder) approving the transaction and advising the Jersey boards that entering into the transaction was for the benefit of the 3 Jersey companies. This UK parent company approval was coupled with a letter of intent from the parent company, to the effect that it would consider making a capital contribution towards the purchase of the relevant UK property assets, although there was no obligation for it to do so.

A pre-condition for the implementation of the scheme was that the FTSE Real Estate Total Return Index would have to close at 2082 or above for at least five consecutive days in a specified period. Another pre-condition required final approval by the parent company (presumably these measures were designed to prevent the scheme being collapsed under the Ramsay principle: however, the likelihood that the chosen index would close above 2082 on five consecutive days was almost certain).
 
Further board meetings were then held on 28 June 2004 (to transfer the legal ownership of the Jersey companies’ shares to Development Securities PLC, the parent company); on 12 July 2004 in order to exercise the options (the FTSE conditions having been met) and to request the funding from the parent company.

Finally, on 20 July 2004 the Jersey directors resigned, and UK resident directors were appointed. Shortly after the appointment of the UK directors, and when it was considered that the Jersey companies were all UK tax resident, the Jersey companies took steps to sell the property assets, thereby triggering a capital loss including the indexation element built into the over-value paid by the Jersey companies.

The decision at first instance

The First-tier Tribunal decision that the Jersey companies were always UK resident i.e. centrally managed and controlled in the UK by the UK parent, seems to have been based on the assumption that the Jersey companies were acting contrary to their best interests by entering into a transaction to buy assets at more than their market value i.e. on uncommercial terms. This assumption then led to the conclusion that the Jersey directors had surrendered their discretion.

An obvious flaw in this reasoning was that although the Jersey companies paid over the odds for the assets, they suffered no loss in doing so because the purchase price was fully funded by the parent company. Moreover, the transaction augmented a capital loss for the clear benefit of the parent company and its group, and therefore indirectly benefitted the Jersey companies as members of the group.

The other flaw in the First-tier Tribunal’s finding that the Jersey companies were UK resident from the outset , was that the evidence showed that the Jersey directors were at pains to ensure that what they were agreeing to implement was lawful from a Jersey perspective, and that no stakeholders in the Jersey companies could be prejudiced by the Jersey companies paying over the odds for the property assets ( such stakeholders that the Jersey directors took into account included creditors, and employees). Only once the Jersey directors had satisfied themselves on these points and had also taken specific advice on both Jersey company law and UK taxation on behalf of the Jersey companies, did they feel able to agree to proceed with the transaction. In other words, the facts showed no evidence that the directors had surrendered their discretion or been dictated to. On the contrary, they implemented the scheme because they, and they alone, decided to do so, after careful consideration.

Conclusion

The decision of the FTT seems to have been a good example of the maxim “hard cases make bad law''. It is reasonable to suppose that the planning, in this case, would be struck down today by the UK’s General Anti-Avoidance Rule, or GAAR. HMRC was unable to invoke the GAAR due to its transitional provisions.

The UTT decision in the taxpayer’s favour, reversing the FTT decision, is consistent with all modern common law authority on the central management and control test and restores an element of legal certainty to a difficult subject.

Jersey has always been at the forefront of the best corporate governance standards and has in 2019 introduced legislation requiring Jersey resident companies conducting specified activities (including holding business, and finance business) to demonstrate adequate levels of economic substance in Jersey. This can only be of benefit to corporate groups who will be concerned to remain compliant with EU and OECD substance requirements.

Vistra in the UK and Jersey can provide advice on appropriate corporate structuring and governance, as well as implementation services including director services. Such services enable clients to create robust corporate structures to conduct their international affairs.  

If you would like to discuss any of the issues mentioned in this publication, please get in touch.

Contact Martin Palmer

Author: Martin Palmer