The case of Laerstate BV was concerned with the question of corporate residence. It may be remembered from earlier Bulletins that this case chronicled the power struggle between Tiny Rowland and Dieter Bock over the control of Lonrho. Although Mr Bock was unsuccessful in arguing that the company was non-resident, the case was noteworthy as it set out the various tests to be applied in determining corporate residence – and there was no dispute between HMRC and the taxpayer regarding the relevant tests to be applied.
Having regard to the importance of the subject matter, and the fact that the taxpayer’s appeal to the Upper Tribunal has been struck out, it may be helpful to repeat the substance of the Tribunal’s comments:
- There remains the classic formulation that a company resides where its real business is carried on – where the central management and control actually abides.
- There is no assumption that central management and control must be found where the directors meet. Where a company is managed by its directors in board meetings, that may be the location of central management and control. But if the management is carried out outside board meetings, it is necessary to identify who is managing the company and making the high-level decisions – and where they were doing it. (This remains the case, even though it may be contrary to the company’s constitution.)
- The whole picture must be considered to arrive at the factual conclusion of where central management and control abides. The location of the signing of documents and the making of board resolutions is significant, but a company’s residence will not fluctuate merely because individual acts of management take place in different places.
- The mere act of signing documents is not conclusive – the local directors must apply their minds to whether or not to sign the documents. There is nothing to prevent a majority shareholder from indicating how the directors of the company should act. If the directors consider those wishes and act on them, it is still their decision. The distinction is between directors making a decision and not a making decision at all – for example, just signing documents without any real consideration. The decisions of the directors must be informed decisions – merely going through the motions is not enough. The directors might follow the wishes of the shareholders, but they must have the minimum information necessary to make a decision. Without that minimum information, there will be no decision at all.
- It would be exceptional for a parent company to assume the functional management of its subsidiary; a parent usually operates through the boards of its subsidiaries. However, this would not be the case if the parent company usurps the functions of the local boards.
These comments usefully supplement other key decisions such as Untelrab and Wood v. Holden, which now seem to represent a reasonably comprehensive code on this subject.