In what promises to be a landmark decision, an Upper Tribunal has reversed the findings from a decision issued in August 2017 in the Development Securities case by a First-tier Tribunal, whereby HMRC successfully argued that several Jersey companies administered by VG (Volaw Trust at the time of the 2004 transactions) were tax resident in the UK.
In the earlier decision, the First-tier Tribunal found that, during the course of implementing a fairly complex transaction in 2004, the Jersey directors had sought (in accordance with Jersey Company law) directions from the UK parent company, which action the First-tier Tribunal considered as effectively ceding control of the companies to the UK parent, which thereby rendered those companies tax resident in the UK.
The recent Upper Tribunal decision however, reverses this decision and, most importantly, ruled that in arriving at their agreed course of actions, the Jersey directors were entitled to take into account the overall corporate benefit derived by the parent company, rather than simply the corporate benefit to each Jersey company. As such the Jersey companies were found to be resident in Jersey, and not the UK, for tax purposes.
The directors of the three Jersey companies at that time were Simon Perchard, Trevor Norman and Robert Christensen; Simon and Trevor continue to be directors of VG, and Robert retired as Managing Director of Volaw in January 2017.
Whilst this decision is important in its own right, it is particularly gratifying to read that the Upper Tribunal was satisfied with the course of action undertaken by the directors, that they had not ceded control to the UK parent and had demonstrated that they:
“Gave detailed consideration to the appropriateness of the scheme;
Knew exactly what they were being asked to decide;
Did so understanding their duties; and
Complied with those duties.”
With the current emphasis on management and control of Jersey companies following the issuance of the 2019 Taxation (Companies – Economic Substance) (Jersey) Law, we are particularly happy to see it acknowledged that, well before the current legislation, VG provided substance to client companies. VG has maintained a robust framework for the administration of client companies since before the regulation of Trust Company Business in Jersey in 2001 and, whilst adhering to these policies and procedures can be time consuming, this decision by the Upper Tribunal shows the importance of effective management and control by directors in Jersey, and how good corporate governance is rewarded in the long term.
A full copy of the transcript can be found here.
Trevor Norman and Simon Perchard, Directors, VG