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IRC v. Willoughby [1997] STC 995 (H.L.)

Tax avoidance through the transfer of assets abroad. Sections 739 and 741 ICTA 1988.

(1) On the natural meaning of the words used in s.739 the section applies only to transfers of assets by individuals who are ordinarily resident in the U.K. at the time of the transfer.

(2) The difference between tax avoidance and tax mitigation: in tax mitigation, the taxpayer takes advantage of a fiscally attractive option afforded by the legislation and genuinely suffers the economic consequences that Parliament intended to be suffered by those taking advantage of the option; in tax avoidance, the favourable tax regime is enjoyed but the economic consequences are not incurred.

Here, there was investment in qualifying policies issued by non-resident life offices (Sch. 15 ICTA 1988 – formerly Sch.2 FA 1975): a special factor here was that the policy-holder could manage his own “portfolio” of investments. Although investment units were notionally allocated to him, he had no legal or equitable interest in the underlying investments, but simply a contractual right to the benefits promised by the policy – he was still suffering the economic consequences intended by Parliament. Thus there was no tax avoidance – he was within the s.741 exemption.

David Goy QC and Philip Baker appeared for the taxpayer

See also Article by David Goy Q.C. and Philip Baker