The Court of Appeal handed down its judgment in the FII GLO today. The Court has held that the majority of the remaining substantive issues should be referred back to the European Court of Justice ("ECJ") for a second time. This includes the issue of whether tax on dividend income for holdings over 10% was contrary to EU law.
The Court of Appeal has also upheld as lawful the retrospective reduction to limitation periods by s320 FA ’04 and s107 FA ’07 which reduced time periods for mistake based claims against HMRC from, in effect, 6 years following the relevant ECJ decision declaring the law unlawful to 6 years from the date of payment of the subject tax. It has done so by concluding that only claims for restitution of payments under an unlawful demand (a “Woolwich” claim) protect EU law rights in the area so that mistake claims can be cancelled without the need to honour EU principles. This is so even if claimants had already chosen mistake claims to vindicate their rights as they were entitled to do by UK law.
The options available for the next stage are either an appeal of this judgment to the Supreme Court before any reference to the ECJ is made or vice versa.