HMRC failed to establish that transactions in an EBT were prohibited under section 423(3) IA1986

HMRC considered the scheme to be ineffective and sought an order, pursuant to s.423 of the Insolvency Act 1986, that the respondents pay sums equivalent to the income tax and NIC, which HMRC considered should have been paid to it, but for the scheme.

HMRC’s claim was dismissed.

The transactions were TUVs for the purposes of s.423(1)(c), because the company was in a worse position as a result of entering into each transaction than it would have been in had it not entered into that transaction.

However, a transaction, which was entered into with the intention that no tax liability should thereby arise, was not an intention to prejudice a claim for that tax liability for the purposes of IA 1986 s.423(3)(b). While HMRC had a duty to collect tax which was due, the court considered it questionable whether HMRC could have "interests" for the purposes of s.423(3)(b).

HMRC also needed to show that the company had entered into each transaction for the purpose of placing assets beyond the reach of HMRC (s.423(3)(a)). There was, however, no evidence that a purpose of the company in setting up the scheme was that, if it failed, its implementation would nevertheless impede HMRC from recovering tax due to HMRC. There was no evidence of any such intention; HMRC had failed to show that IA 1986 s.423(3) was satisfied.

Purkiss (as Liquidator of Ethos Solutions Ltd) v Kennedy and others [2024] EWHC 1081 (Ch)