Commissioners for HM Revenue and Customs v Fisher and Another; HMRC v Fisher (No 2)
•February 22, 2026
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Why It Matters
The ruling clarifies how UK anti‑avoidance rules tax cross‑border asset transfers, affecting multinational groups’ structuring decisions and potentially prompting legislative reform.
Key Takeaways
- •Section 740 taxes benefits from non‑resident asset transfers as income.
- •Valuation of non‑income benefits determines taxable amount under 740.
- •Relevant income pool caps total tax charge across beneficiaries.
- •Section 744 apportions income when multiple beneficiaries receive benefits.
- •Fisher case exposes unfairness for minority shareholders under current rules.
Summary
The hearing centered on the interpretation of UK anti‑avoidance provisions—sections 739, 740, 744 and related case law—in the Commissioners for HM Revenue and Customs v Fisher litigation. The court examined how transfers of assets to non‑resident entities trigger tax liability and whether benefits derived from those assets should be treated as income.
Section 740 requires a transfer of assets, a resident individual not already liable under 739, and a benefit drawn from the transferred assets. The benefit—whether a capital payment, interest‑free loan or occupational property—is first valued; the amount is then taxed to the extent it falls within the ‘relevant income’ generated abroad. The relevant‑income pool therefore caps the total charge for all beneficiaries in a given year.
The judges illustrated the mechanics with a £100,000 income pool and two beneficiaries each receiving £100,000 of benefit. Section 744 forces an apportionment so that each is taxed on only half the pool, preventing double taxation. Counsel highlighted the Fisher scenario where a majority shareholder bears the entire 739 charge while a minority shareholder receives a later benefit, exposing a perceived unfairness.
The decision underscores a legislative gap between sections 739 and 740, especially for minority shareholders and complex structures such as LLPs or partnerships. Tax practitioners must scrutinise the source and timing of benefits to avoid unexpected liability, and policymakers may need to refine the rules to close the identified loophole.
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: 20 July 2023
Session: Afternoon session [Session 4 of 4]
Judgment date: 22 November 2023
Neutral citation: [2023] UKSC 44
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