Note on the decision in Ben Nevis and Anor v Commissioners for HM Revenue & Customs — Court of Appeal

It is a well-established and almost universal principle that courts of one country will not enforce the revenue laws of another country. The ‘revenue rule’, as noted in England by the House of Lords decision in Government of India v Taylor, has been widely recognised for many years.

However, recent years have seen substantial moves away from the revenue rule through the use of international agreements. Many bilateral and multilateral tax assistance treaties now include provisions for the collection and recovery of taxes. In many cases, these treaties have been introduced by way of protocols that amend existing double taxation agreements.

Changes to such existing tax conventions brings into focus how far back authorities can reach to recover tax debts that were, until those changes, unenforceable. In its decision in Ben Nevis Holdings Ltd and Anor v HMRC, the English Court of Appeal has considered this question in the context of the Tax Convention between the UK and South Africa. The Court of Appeal held that not only did the 2010 protocol permit the recovery of taxes assessed prior to its introduction but also taxes prior to the commencement…

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