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RENDER UNTO CAESAR THE THINGS THAT ARE CAESAR’S

Lloyd's Maritime and Commercial Law Quarterly

RENDER UNTO CAESAR THE THINGS THAT ARE CAESAR’S

Adrian Briggs*

SKAT v Solo Capital Partners
If the victim of a fraud sues the fraudster to recover the sums she was tricked into parting with, her claim is naturally seen as a fraud claim. If HMRC sues a taxpayer to recover the sums it was tricked into refunding, the claim is naturally seen as a tax claim. But if a foreign tax authority sues a fraudster, a stranger, to recover sums it had been tricked into paying in the mistaken belief that they were due in respect of withholding tax which was not due, is its claim, restitutionary in nature and form, actually brought to enforce a revenue law? Is it a tax claim? For if it is, the rule of the conflict of laws that an English court will not enforce the revenue laws of a foreign country would appear to bar the claim; if not, not. On the trial of a preliminary issue in Skatteforvaltningen v Solo Capital Partners LLP,1 Andrew Baker J held that the claim was a tax claim as well as a fraud claim and declared the claim to be inadmissible by reference to the (Dicey) rule2 of the conflict of laws that “English courts have no jurisdiction[3] to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign State”. However, the Court of Appeal4 has now held that it was a fraud or restitutionary claim, but not a tax claim, and allowed it to proceed. The Court of Appeal was plainly right; what is puzzling is how anyone could have thought otherwise than it did.
The Danish tax administration, SKAT, was tricked into paying out close to £1.5 billion to a number of defendants who claimed that they had received payments by way of dividend upon or from which Danish withholding tax had been deducted at source; they claimed that they were, as genuine foreign recipients would indeed have been, not subject to the particular Danish tax liability. Although Danish law does make provision for withholding tax, in the present case the sums paid out should not have been paid out at all, for the

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