David Stuart Wesley & Anor v The Commissioners for HMRC

Decision date: 15 February 2021

Neutral citation: [2023] UKFTT 1041 (TC)

Overall AI summary confidence: high

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Short overview

This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.

AI confidence in this short overview: high

This appeal by the trustees of the Ellen Morris 1990 Settlement challenged HMRC’s closure notice assessing capital gains arising on the liquidation of Wesmor Ltd after trustees were temporarily resident in Mauritius. The Tribunal rejected the trustees’ contention that Article 4(3) DTC operated to treat different persons as taxable in the two states and held that the place of effective management (POEM) of the trustees/trust was the UK because top-level decisions were devised and orchestrated in the UK; the appeal was therefore dismissed and the gains held taxable in the UK.

Ratio decidendi

This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.

AI confidence in this ratio decidendi summary: medium

Where a trust and its trustees have potentially overlapping tax liabilities under a double taxation convention, Article 4(1) and (3) are to be applied by reference to liability to taxation and the place of effective management of the trustees-as-continuing-body; contemporaneous documentary evidence showing who devised and directed high-level decisions is central to determining POEM, and temporary trustees who merely implement a prearranged scheme will not be treated as having POEM in their jurisdiction.

Obiter dicta

This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.

AI confidence in this obiter dicta summary: medium

The Tribunal observed that professional advisers who source trustees and timetable transactions can, in practice, orchestrate arrangements so that temporarily appointed trustees perform “window dressing” rather than independent top-level management; and noted that POEM and corporate central management and control tests are distinct and should not be conflated.