David Cruickshank looks at inconsistencies in EC tax laws

The impact of European Community law on UK domestic law is an increasingly high profile and controversial issue. Most attention has been focused on sensitive areas involving obvious points of public interest, such as sentencing matters, but developments in the more arcane area of tax law may turn out to be equally significant.

A recent decision by the House of Lords provides a graphic illustration. In the ICI v Colmer case the house ruled that an ICI/Wellcome joint venture did not qualify as a holding company under UK law. The sting in the tail was that this was not the end of the matter. Although European Community law had not been seen as an issue by the Inland Revenue or by ICI when arguing their case before the lower courts, the Law Lords agreed it was at least arguable that the UK legal position was inconsistent with Community law.

ICI/Wellcome had said that Articles 52 and 58 of the Treaty of Rome, which are directed against restricting freedom of establishment of people and companies of one member state in the territory of another, effectively overruled the provisions of the UK Taxes Act.

The case is a salutary lesson in how pervasive the influence of European law has become although we are perhaps coming to terms with it somewhat slowly. The Inland Revenue, the company, its legal advisors and most commentators seem to have failed to appreciate the European dimension until they reached the very last rung of the judicial ladder. The obvious advice is to take the potential European dimension into account in the early stages of a case.

The Law Lords refused to decide that the matter was cut and dried but were unanimous in agreeing that a new hurdle in the shape of European law might confront the UK Revenue. Harmonisation of tax law within the Community may still look like a distant goal. If this case goes against the Revenue it will underline the fact that we might be much closer to harmonisation than we think.

The simple message for those working with European multinational companies on their tax affairs is always to consider whether a relief might be available under the Treaty of Rome. However, do it at the outset, not after all else has failed.

David Cruickshank is head of tax at Deloitte & Touche in London.