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JHA | Simon Whitehead
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Why the EC regards the group financing exemptions as state aid
Originally published in Tax Journal on 12 January 2018.   The European Commission has published its preliminary decision finding the non-trading financing profits exemptions in the UK’s controlled foreign companies (CFC) rules to amount to unlawful state aid. The published decision appears to differ somewhat from the earlier short press release of 26 October 2017.
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The Legal 500 Comparative Tax Guide 2017
Originally printed in The In-House Lawyer: Comparative Guides. This country-specific Q&A provides an overview to tax laws and regulations that may occur in the United Kingdom.
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Chambers Global Practice Guide on Corporate Tax: Law & Practice (Q&A)
Originally printed in Chambers Global Practice Guide on Corporate Tax. The Corporate Tax guide provides expert legal commentary on key issues for businesses. The guide covers the important developments in the most significant jurisdictions.
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BT Pension Trustees: possible extension of remedies for breach of EU law
In BT Pension Trustees (Case C-628/15), Advocate General Wathelet challenges the established dichotomy adopted in the characterisation of claims in breach of EU law. He finds a simpler way to address a claim by an exempt taxpayer seeking a credit denied in breach of EU law than the usual distinction between a claim for the repayment of tax and the more restricted claim for damages to compensate for indirect losses. In his view, the primacy of EU law acts to remove the discriminatory provisions pure and simple.
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The Legal 500 Comparative Tax Guide
This country-specific Q&A provides an overview to tax laws and regulations that may occur in the United Kingdom (UK). It will cover witholding tax, transfer pricing, the OECD model, GAAR, tax disputes and an overview of the jurisdictional regulatory authorities. This Q&A is part of the global guide to Tax. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/tax-2/
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FII group litigation ruling on tax on foreign sourced dividends
The Court of Appeal handed down its judgment in The Test Claimants in the FII Group Litigation v HMRC on 24 November 2016, finding largely in favour of the taxpayers. The method of computing double tax relief on EU sourced dividends for the period from 1973 to 1999 therefore remains as established by Henderson J. HMRC again raised its various ‘restitutionary’ defences as to why it should not have to repay the unlawful tax, but these were rejected. The court notably allowed the claimants’ cross-appeal regarding the date of discovery, extending the date from which the six-year limitation period began to run from 2001 to 12 December 2006 and bringing all claims in the GLO within time.
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Six Continents: cross-border dividend tax
Henderson J handed down judgment in Six Continents v HMRC [2016] EWHC 2426 (Ch) on 5 October 2016. The issues concerned what foreign profits should receive credit at the foreign nominal rate in accordance with the ruling of the CJEU in Test Claimants in the FII Group Litigation v HMRC (Case C-35/11). The judgment holds that Six Continents are entitled to a credit at the FNR on the underlying foreign profits which incorporated adjustments to the commercial profits for the revaluation of shareholdings, the release of warranty provisions and exchange rate adjustments which were removed for local tax. It also held that the same credit would apply to capital gains even though exempt under the Dutch participation exemption. Henderson J handed down judgment in Six Continents v HMRC [2016] EWHC 2426 (Ch) on 5 October 2016. The issues concerned what foreign profits should receive credit at the foreign nominal rate in accordance with the ruling of the CJEU in Test Claimants in the FII Group Litigation v HMRC (Case C-35/11). The judgment holds that Six Continents are entitled to a credit at the FNR on the underlying foreign profits which incorporated adjustments to the commercial profits for the revaluation of shareholdings, the release of warranty provisions and exchange rate adjustments which were removed for local tax. It also held that the same credit would apply to capital gains even though exempt under the Dutch participation exemption.
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Prudential Assurance: foreign dividend income and EU law
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The Prudential claim is the test case for claims concerning tax unduly levied on portfolio investment income in the CFC and dividend GLO. That GLO currently involves claims by companies in 33 corporate groups or fund management houses. In the High Court, Henderson J found in favour of the taxpayer, concluding that the second ruling clarified the first and was equally applicable in the cases of portfolio investments as it was to controlled interests. The issue of Prudential’s entitlement to compound interest remains subject to further litigation and HMRC has been granted permission to appeal on that issue alone to the Supreme Court to preserve its position. Originally printed in Tax Journal.
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One minute with… Simon Whitehead
HMRC    Publication    Super Tax    Tax Journal    
Simon Whitehead tells Tax Journal about his in-tray, big developments to look out for in 2016, his tax hero, Joseph Hage Aaronson LLP, Pham v Sec of State for the Home Department [2015] UKSC 19, and what he gets up to in his garage. Originally printed in Tax Journal on 5 Feb 2016.
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Adviser Q&A: AG’s opinion in FII Test Claimants
The advocate general’s opinion on Test Claimants in the FII Group Litigation v HMRC (Case C-362/12) was delivered on 5 September. Simon Whitehead takes a look. Originally printed in Tax Journal, 13 September 2013.
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