Scottish Widows Plc v Commissioners for HM Revenue and Customs
| Jurisdiction | Scotland |
| Judge | LORD HOPE,LORD WALKER,LADY HALE,LORD NEUBERGER,LORD CLARKE |
| Judgment Date | 06 July 2011 |
| Neutral Citation | [2011] UKSC 32 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 2 |
| Date | 06 July 2011 |
[2011] UKSC 32
THE SUPREME COURT
Trinity Term
On appeal from: [2010] CSIH 47; [2008] UKSPC 664
Lord Hope, Deputy President
Lord Walker
Lady Hale
Lord Neuberger
Lord Clarke
Appellant
John Gardiner QC
David Johnston QC
Philip Walford
(Instructed by Maclay Murray & Spens LLP)
Respondent
Andrew Young QC
Kenneth Campbell
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Cross Appellant
Andrew Young QC
Kenneth Campbell
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
Cross Respondent
John Gardiner QC
David Johnston QC
Philip Walford
(Instructed by Maclay Murray & Spens LLP)
This is an appeal from an interlocutor of the First Division of the Inner House of the Court of Session (the Lord President (Hamilton), Lord Reed and Lord Emslie) in a joint referral to the Special Commissioners by Scottish Widows Plc ("the Company") and Her Majesty's Revenue and Customs ("HMRC") under para 31 of Schedule 18 to the Finance Act 1998: [2010] CSIH 47, 2010 SLT 885, 2010 STC 2133. The question that was referred to the Special Commissioners for their determination was in these terms:
"Whether in computing the Case 1 profit or loss of Scottish Widows plc for the accounting periods ending in 2000, 2001 and 2002, amounts described by the company as 'transfers from Capital Reserve' and included as part of the entries at line 15 of Form 40 for each period fall to be taken into account [as receipts] in computing the profit or loss as the case may be."
It is agreed that the words "as receipts", which were not in the question as referred, may be understood as following after the words "into account." The Special Commissioners answered that question in the affirmative. The Company appealed against that decision and HMRC cross-appealed. The Court of Session by a majority (Lord Emslie dissenting) refused the appeal and unanimously refused the cross-appeal. Both sides have appealed against its decisions to this court.
The essence of the dispute between the parties is whether, in each of the three consecutive years in question, part of the entry in line 15 of the Company's form 40 must be taken as falling within the scope of either section 83(2) or section 83(3) of the Finance Act 1989, as substituted by paragraph 16 of Schedule 8 to the Finance Act 1995 and paragraph 4 of Schedule 31 to the Finance Act 1996. If it falls within the scope either of these two subsections, the sum concerned will fall to be treated as a chargeable receipt for the purposes of Case 1 of Schedule D in ascertaining whether, and if so to what extent, the Company made a loss during those years.
The Company carries on business as a life assurance company. Insurance business is a trade within the meaning of Case 1 of Schedule D: Income and Corporation Taxes Act 1988, section 18. The amounts to be taken into account in computing its profits include its investment income from its long term business fund and any increase in the value of its assets during the accounting period. Those profits may be computed for tax purposes in one or other of two ways. They may be computed on the Schedule D, Case 1 basis, the actuarial surplus being a suitable starting point for dealing with cases of this description: see Scottish Union and National Insurance Co v Inland Revenue (1889) 16 R 461, 475, per Lord President Inglis. Or they may be computed on the basis of the income which the insurer receives on its investments less management expenses, known as the "I – E" basis. HMRC are entitled to elect to charge tax on the investment income, and they almost invariably do so as it nearly always pays the Crown to take the interest on the investments and not to trouble with the profits: Revell v Edinburgh Life Insurance Co (1906) 5 TC 221, 227 per Lord President Dunedin. But a Case 1 computation is nevertheless required in every case.
The dispute between the parties arises from the demutualisation in 2000 of the Scottish Widows Fund and Life Assurance Society ("the Society") and the transfer, under a scheme sanctioned by the Court, of its business to the Company. The scheme came into effect on 3 March 2000. In para 22.1 it was provided that on or after the effective date the Company was to maintain a memorandum account within its long term fund, designated as the capital reserve, which was to represent the amount of the shareholders' capital held within the long term business fund. The capital reserve was to be divided between the Company's with profits fund and its non participating fund. Para 22.4 provided that the Company was to maintain records of the capital reserve and of the parts of it allocated to each of these two funds. While the funds comprised identifiable assets with all the qualities that attach to items of that kind, the capital reserve was a device or, as Lord Walker says in para 55, an abstraction. It was created for accounting purposes only and had no real life of its own.
At the time of the transfer to the Company the value of the Society's assets was substantially in excess of its liabilities. But the Company sustained trading losses in each of the relevant accounting periods. The market value of its assets decreased from the inception of its long term business fund, due principally to falls in the value of the stock market. The Company claims that account should be taken of its commercial losses in its non participating fund during the relevant accounting periods. It has included Case 1 losses in its tax returns and computations for those periods equal to £28,689,437, £612,583,866 and £431,261,757 respectively.
HMRC maintain that, on a proper construction of section 83(2) of the 1989 Act, which failing of section 83(3), and having regard to entries in the Company's statutory returns for the relevant periods in which it was required to show that it had a surplus in excess of its liabilities for regulatory purposes, these claims should be disallowed. The Company brought various sums into account, described as transfers from the capital reserve, in the years in which they sustained losses. HMRC submit that each increase in the regulatory value selected by the Company falls to be treated as an increase in the value of its assets within the meaning of section 83(2)(b). In any event the amounts brought into account and recorded as transfers from the capital reserve fall to treated as receipts under section 83(3) because they were amounts which had previously been added to the long term business fund as part of the transfer of business to the Company from the Society.
The statutory provisions
Section 83, as amended, so far as relevant to this case provides as follows:
"(1) The following provisions of this section have effect where the profits of an insurance company in respect of its life assurance business are, for the purposes of the Taxes Act 1988, computed in accordance with the provisions of that Act applicable to Case 1 of Schedule D.
(2) So far as referable to that business, the following items, as brought into account for a period of account (and not otherwise), shall be taken into account as receipts of the period –
(a) the company's investment income from the assets of its long term business fund, and
(b) any increase in value (whether realised or not) of those assets.
If for any period of account there is a reduction in the value referred to in paragraph (b) above (as brought into account for the period), that reduction shall be taken into account as an expense of that period.
(3) In ascertaining whether or to what extent a company has incurred a loss in respect of that business in a case where an amount is added to the company's long term business fund as part of or in connection with–
(a) a transfer of business to the company, or
(b) a demutualisation of the company not involving a transfer of business,
that amount shall (subject to subsection (4) below) be taken into account for the period for which it is brought into account, as an increase in value of the assets of that fund within subsection (2)(b) above.
(4) Subsection (3) above does not apply where, or to the extent that, the amount concerned –
(a) would fall to be taken into account as a receipt apart from this section,
(b) is taken into account under subsection (2) above otherwise than by virtue of subsection (3) above, or
(c) is specifically exempted from tax."
In section 83(8) of the 1989 Act, as amended it is provided that the word "add" in that section, in relation to an amount and a company's long term business fund, includes transfer (whether from other assets of the company or otherwise). Section 83A(1), which was inserted by section 51 of and paragraph 16 of Schedule 8 to the Finance Act 1995 and amended by paragraph 6 of Schedule 31 to the Finance Act 1996, provides that "brought into account" in sections 83 to 83AB (as inserted by paragraph 5 of Schedule 31 to the 1996 Act) means brought into account in an account which is recognised for the purposes of those sections. Section 83A(2) provides:
"Subject to the following provisions of this section and to any regulations made by the Treasury, the accounts recognised for the purposes of those sections are –
(a) a revenue account prepared for the purposes of the Insurance Companies Act 1982 in respect of the whole of any separate revenue account required the company's long term business;
(b) to be prepared under that Act in respect of a part of that business.
Paragraph (b) above does not include accounts required in respect of internal linked funds."
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