Spring Salmon and Seafood Limited [2017 UKUT 0205 (TCC) the Upper Tribunal (UT) upheld the decision that a terminal loss relief claim was not a stand alone claim.

  • The taxpayer ceased trading, with a significant trading loss arising in the final period.
  • In a letter subsequent to the final CT600, the taxpayer applied for terminal loss relief.
  • HMRC opened an enquiry into the final Return under Sch 18 of FA88 and disallowed substantial amortisation.
  • HMRC then disallowed most of the terminal relief claim.
  • The taxpayer contended that the Sch 18 enquiry did not include the terminal loss claim (as a Sch 1A enquiry was needed) and HMRC were now out of time to challenge this.

The crux of the taxpayers argument was the decision of the Supreme Court in Cotter v HMRC (2013) UKSC 69.  As the terminal loss claim does not impact on the liability for the final period, the taxpayer contended that it did not form part of the Return and HMRC were wrong to disallow it.

The UT rejected this argument, instead preferring the decision in R (on the application of De Silva) v Revenue and Customs Commissioners 2016 EWCA Civ 40.

Comment

Given that De Silva is an income tax case, where the tax relief available on losses actually arises in the year of loss (rather than the year against which it is used, as under corporation tax rules), and the losses at stake are significant, it seems likely that the taxpayer will pursue the case further.

Not to be confused with Spring Salmon & Seafood Limited v HMRC [2016] UKUT 0313 - a PAYE/NICs case.

Links:

Spring Salmon and Seafood Limited [2017 UKUT 0205 (TCC)

Cotter v HMRC [2013] UKSC 69


 

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