No UKSC Christmas Present for Vodafone

vodafone logo, via vodafone siteCases dealing with the consequences of the European Court of Justice, striking down national tax provisions as inconsistent with EU law, just seem to keep on coming. In C-196/04 Cadbury Schweppes v Commissioners of Inland Revenue [2006] ECR I-7995 [2006] EUECJ C-196/04 (12 September 2006) the ECJ called the Controlled Foreign Companies taxation provisions of the Income and Corporation Taxes Act 1988 into question, having regard to EU law. Important restitution questions would then have arisen. However, in Vodafone 2 v HM Revenue & Customs [2009] EWCA Civ 446 (22 May 2009) the Court of Appeal (reversing the High Court [2008] EWHC 1569 (Ch) (04 July 2008)) nevertheless concluded that the provisions were susceptible to an interpretation conforming with EU law. The question now to be decided by the Tax Tribunal is therefore whether the vodafone arrangment is within that interpretation on the facts. But this appears to be the end of the line so far as the law is concerned. Just before Christmas, the UKSC blog reported that the UK Supreme Court declined to give Vodafone a Christmas present of leave to appeal against the Court of Appeal’s decision:

It was widely expected that this case would be heard by the Supreme Court. After all, it concerns the interaction of UK tax with European legal requirements, a lively area for legal debate. The appeal was also noteworthy for the sheer size of the tax at stake, estimated to be £2.2 billion. But none of this appears to have swayed the Supreme Court’s decision. It is a disappointment that the Supreme Court has not agreed to hear this case, as it raised an interesting question of how tax legislation should apply following a decision of the ECJ that such legislation is contrary to EC law.

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