Upper Tribunal denies disclosure of MAP documents
The Upper Tribunal (Fancourt J and UT Judge Thomas Scott) has dismissed the appeal of a taxpayer, Mr McCabe, who sought disclosure of confidential exchanges between HMRC and the Belgian tax authority.
Mr McCabe, former owner of Sheffield United football club, is considered by HMRC to be resident for tax purposes in the UK in 2006/07 and 2007/08. He was also resident in Belgium. He instigated the mutual agreement procedure (“MAP”) under the UK/Belgium Double Tax Convention (“DTC”), arguing that the UK was not treating him in accordance with the DTC. The UK and Belgian tax authority concluded the MAP on the basis that he was resident under the DTC in the UK. Mr McCabe sought disclosure of all documents exchanged between the UK and Belgian tax authority in the MAP. The FTT rejected that application and that decision has been upheld on appeal.
This is the first case in which the tax tribunals have considered the issue of access to MAP documents. MAP procedures are increasingly seen as an alternative to an appeal to the FTT. This decision provides useful guidance on the factors that a tribunal is going to take into account if a similar application is made by another taxpayer, in particular the degree of relevance of documents exchanged between competent authorities many years after the events, and the desire of the competent authorities to maintain confidentiality.
The consideration given by the UT to categorisation of documents according to relevance is of general application to all contested disclosure applications in the FTT. The decision of Sales J in Ingenious is frequently cited by parties seeking disclosure in complex cases. The UT in the present case considered the particular context in which Ingenious was decided and warned against drawing from it principles of general applicability to disclosure applications.
Christopher Stone represented HMRC, as he did before the FTT.
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