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Court of Appeal hands down judgment in £5bn case on compatibility of dividend taxation with Community law


The Court of Appeal (Arden, Stanley Burnton & Etherton LJJ) today handed down its judgment in Test Claimants in the Franked Investment Income Litigation v Her Majesty's Revenue & Customs, a case which raised important legal issues as to the compatibility of UK corporate taxation with the free movement provisions of the TFEU, and the principles of restitution in relation to tax overpaid on the basis of incompatible UK legislation.

In a lengthy judgment, covering a range of issues of both domestic and EU law, the Court of Appeal overturned Henderson J's conclusion at first instance that the tax treatment of foreign dividends contravened the freedom of establishment. It indicated that it considered a further reference to the ECJ to be necessary to seek clarification of this and a number of other aspects of the European Court's previous judgment in these proceedings.

The Court of Appeal also considered the remedies available to a taxpayer who has overpaid tax. Its conclusions in this regard will have broader ramifications for the development of the domestic principles of restitution.

Estimates of the total sums at stake in these proceedings put the value of the case at up to £5 bn.

The judgment is here.

Kelyn Bacon and Sarah Ford appeared for HMRC.