Prudential Assurance Company Ltd v Commissioners for Her Majesty's Revenue and Customs скачать в хорошем качестве

Prudential Assurance Company Ltd v Commissioners for Her Majesty's Revenue and Customs

[2018] UKSC 39 UKSC 2016/0102 Prudential Assurance Company Ltd (Respondent) v Commissioners for Her Majesty's Revenue and Customs (Appellant) On appeal from the Court of Appeal Civil Division (England and Wales) Prudential is a Test Claimant in this litigation, which relates to periods running from 1990-2009 and concerns the tax treatment of UK-resident companies that received dividends from portfolio shareholdings (i.e. where the investor holds less than 10% of the voting power in the company in question) in companies in the EU and in third countries, which were allocated to their pensions and life business. The ECJ and CJEU confirmed that the UK’s tax treatment of dividends received by foreign companies breached Article 56 of the EC Treaty (now Article 63 TFEU) and was unlawful to the extent that a tax credit was not granted to the company receiving the dividends for the tax actually paid by the company making the distribution in the State in which the latter was resident. The current dispute is based on the interpretation of the requirements of EU law so as to avoid a discriminatory treatment of national and foreign sourced dividends. The issues are: Does EU law require a tax credit in respect of overseas dividends to be set by reference to the overseas tax actually paid, or by reference to the foreign nominal tax rate (“FNR”)? Is PAC entitled to compound interest in respect of tax which was levied in breach of EU law, on the basis that HMRC were unjustly enriched by the opportunity to use the money in question? Subject to HMRC’s being granted permission to argue the point, does a claim in restitution lie to recover lawful ACT which was set against unlawful mainstream corporation tax (“MCT”)? If the answer to (I) is that EU law requires a tax credit to be set by reference to the overseas tax actually paid, PAC seek permission to cross-appeal on the following question: should the charge to corporation tax on the foreign dividend income under Case V of Schedule D (“DV tax”) be disapplied, or should PAC be allowed to rely on FNRs, or on consolidated effective tax rates, as a simplification or proxy for tax actually paid? If HMRC are granted permission to argue Issue III, PAC seek permission to cross-appeal on the following questions: where ACT from a pool which includes unlawful and lawful ACT is utilised against an unlawful MCT liability, should the unlawful ACT be treated as a pre-payment of the unlawful MCT liability, or is the ACT so utilised to be treated as partly lawful and partly unlawful; and where domestic franked investment income (“FII”) was carried back to an earlier quarter, is it to be treated as having been applied to relieve the lawful and unlawful ACT pro rata, or only lawful ACT? The Supreme Court unanimously dismisses HMRC’s appeal on Issue I, allows HMRC’s appeal on Issues II and III, and allows PAC’s cross-appeal on Issue V.