Enforceability of two anti-avoidance provisions questioned by EU

By making a formal request to the UK Government the European Commission has thrown doubt on two provisions that tax UK residents on income or gains belonging to persons resident elsewhere in the EU.

The EC considers they are discriminatory and go beyond what is necessary to prevent the abuse intended. The provisions in question aim to negate efforts to avoid UK tax by taxing a UK resident in respect of the income or gains belonging to the person resident outside of the UK. One applies when individuals who are ordinarily resident in the UK transfer assets abroad so that income arises outside of the UK and the other apportions some gains in some non-resident companies to UK shareholders.

The UK Government has to respond shortly, so we await to see whether it chooses to defend the provisions or amend the legislation. If you have suffered a charge under either of these provisions and the person that received the income or gains is resident in an EU state, you should consider challenging the assessments under EU non-discrimination provisions. We expect HMRC will reject challenges, but as the process will take a long time we recommend early action.

For more informationa or assistance please contact Richard Service or Rosemary Blundell.

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