Commissioners for HM Revenue and Customs v Fisher and Another; HMRC v Fisher (No 2)
•February 22, 2026
0
Why It Matters
The outcome will set a precedent for interpreting motive‑based tax avoidance defences, influencing how businesses structure transfers to meet regulatory requirements without triggering HMRC challenges.
Key Takeaways
- •FTT misidentified the relevant asset transfer for tax motive analysis.
- •Transfer aimed to comply with Section 9, not solely avoid duty.
- •HMRC argues motive defense was applied incorrectly by appellate courts.
- •Evidence shows business operated duty‑free before February 2000 transfer.
- •Ruling may reshape interpretation of tax avoidance defenses nationwide.
Summary
The hearing in Commissioners for HM Revenue and Customs v Fisher centered on whether the February 2000 transfer of a tele‑betting business from SJA to SJG was driven by a genuine need to comply with Section 9 of the Betting, Gaming and Lotteries Act or by a purpose of avoiding tax liability. HMRC contended that the First‑tier Tribunal (FTT) erred by focusing on the earlier Gibraltar branch transfer rather than the specific asset hand‑over that gave rise to taxable income, thereby misapplying the motive defence under section 739.
The tribunal’s analysis was challenged on two fronts: first, that it failed to identify the correct transfer – the list of customers, telephone numbers and teletex accounts moved in February 2000 – and second, that it conflated the business‑saving motive with an intention to evade betting duty, despite evidence the operation was already duty‑free since July 1999. Counsel highlighted advice from David Oliver QC and prior Customs and Excise guidance mandating a separate legal entity to avoid prosecution, underscoring that the primary purpose was regulatory compliance, not tax avoidance.
Key excerpts included references to FTT paragraphs 440‑441 and 384, which recorded the Fischers’ belief that a distinct company was necessary for UK‑source bets, and footnote 14 citing Lord Sale’s remarks on motive. The discussion also noted competitor Victor Chandler’s similar corporate structuring, reinforcing the argument that the transfer was industry‑standard rather than a tax‑driven scheme.
If the appellate court accepts HMRC’s submissions, the decision could redefine how motive‑based tax avoidance defences are evaluated, compelling tribunals to scrutinise the precise timing and purpose of asset transfers. This would tighten HMRC’s ability to challenge arrangements that appear compliant on their face but are alleged to mask tax avoidance, affecting future structuring decisions across the gambling sector and beyond.
Original Description
Commissioners for His Majesty's Revenue and Customs (Respondent) v Fisher and another (Appellants)
UKSC/2021/0212
Commissioners for His Majesty's Revenue and Customs (Appellant) v Fisher (Respondent) No 2
UKSC/2021/0213
Hearing date: 19 July 2023
Session: Afternoon session [Session 2 of 4]
Judgment date: 22 November 2023
Neutral citation: [2023] UKSC 44
0
Comments
Want to join the conversation?
Loading comments...