As someone who has been writing about the Vodafone CFC case over the last two years like an overexcited puppy, I can hardly turn around now and say that the case isn’t significant at all. But in one sense, it arguably is.
Esteemed experts from accountancy firms and from law firms are all lining up to say that the High Court’s rejection of the CFC rules is terrible news for the government, and removes a key set of anti-avoidance principles.
But will it have any impact?
Few companies have big CFC liabilities like Vodafone, because the rules are an obstacle rather than anything else: companies plan around them. So there aren’t thought to be huge numbers of cases awaiting resolution.
And secondly, noone is going to say to themselves now: ‘Why don’t we ignore the government’s controlled foreign companies rules.’
Whatever happens, the government will introduce new rules that will have a similar effect, so I doubt anyone’s behaviour will ultimately change going forward. (it will actually prove more of a problem for taxpayers, since they’ll have to master the new rules rather than the old ones.)
What’s more, I suspect there is some doubt the judgment will stand. Taxpayers often win in the High Court, with HMRC having a better record elsewhere. With £2bn at stake, there’s no danger of anyone backing down if they don’t have to.
The really intriguing part of the case is not, if you ask me, what impact this has for other companies, but on what Vodafone was up to.
The company has declined to elaborate on the details of its Luxembourg subsidiary, which bought the shares of Mannesmann, and in which those shares attract no capital gains charge.
Are all relevant management decisions made in Luxembourg? Are there lots of people there? Vodafone says it meets the tests, but hasn’t pleaded its case in court in full.
Does Darwin's theory apply to taxation? Colin ponders...
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