HMRC v Fisher - Section 739 Income Tax Attribution: Individual as Transferor
Summary
The UK Supreme Court in HMRC v Fisher (UKSC/2021/0212, [2023] UKSC 44) has clarified the interpretation of section 739 of the Income and Corporation Taxes Act 1988 concerning offshore income attribution. The Court held that for section 739 to apply, the individual who has the power to enjoy the income must generally be the transferor of the assets; however, an individual may be treated as a transferor where the company making the transfer is one in which that individual has a controlling interest in the relevant shareholding. The appeal by Stephen and Peter Fisher and the cross-appeal by HMRC regarding Anne Fisher were heard over two days in July 2023 before the five-justice panel.
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What changed
The Supreme Court judgment in HMRC v Fisher provides authoritative guidance on the construction of the UK's offshore income attribution rules under section 739 of the Income and Corporation Taxes Act 1988 (now Chapter 2 of Part 13 of the Income Tax Act 2007). The Court clarified a two-part test: first, that the individual who enjoys the income must generally be the transferor of the assets; and second, that an individual may be treated as a transferor where a company controlled by that individual makes the transfer. The practical effect is that UK resident individuals with interests in offshore companies who have the power to enjoy those companies' income face potential tax charges on that income even when the initial asset transfer was technically made by the company itself rather than directly by the individual.
Affected parties include UK resident individuals who hold interests in overseas companies through corporate structures, particularly those in the betting, gaming, and broader entertainment sectors. Tax advisers and compliance teams should review existing offshore structures to assess whether the income of overseas companies could be attributed to UK-resident individuals under section 739, taking into account the Supreme Court's clarification on the transferor requirement. HMRC's victory in the cross-appeal regarding Anne Fisher's position also signals the Revenue's willingness to pursue attribution cases through to the highest appellate level.
Archived snapshot
Apr 23, 2026GovPing captured this document from the original source. If the source has since changed or been removed, this is the text as it existed at that time.
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TAX
Commissioners for His Majesty's Revenue and Customs (Respondent) v Fisher and another (Appellants)
Judgment given
Contents
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Case summary
Case ID
UKSC/2021/0212
Parties
Appellant(s)
Peter Fisher
Stephen Fisher
Respondent(s)
Commissioners for His Majesty's Revenue and Customs
Issue
What is the correct construction of the anti-avoidance provisions in section 739 and following of the Income and Corporation Taxes Act 1988 (and its successor in Chapter 2 of Part 13 of the Income Tax Act 2007)? In particular:
i) Does the transfer of assets have to be a transfer by the individual who has the power to enjoy the income that becomes payable to the overseas person?
ii) If the individual has to be the transferor of the assets in order for section 739 to apply, in what circumstances (if any) can an individual be treated as a transferor of the assets where the transfer is in fact made by a company in which the individual is a shareholder?
Facts
The Fisher family established the Stan James betting business. This appeal concerns the transfer of part of the Stan James betting business from a UK resident company, Stan James (Abingdon) Limited to a Gibraltar resident company, Stan James Gibraltar Limited ("SJG") in 2000, and the assessments to tax made on Stephen, Peter and Anne Fisher on the basis that they had "power to enjoy" income of SJG.
Assessments to tax were issued by HMRC to each of Stephen and Anne Fisher in respect of the years of assessment 2000/2001 to 2007/2008 and Peter Fisher in respect of the years 2000/2001, 2001/2002, 2003/2004 and 2004/2005. Pursuant to section 739 of the Income and Corporation Taxes Act 1996, HMRC treated the income of SJG as the deemed income of the Fishers in proportion to their respective shareholdings in the company.
The Court of Appeal upheld the tax charges on Stephen and Peter but not Anne. Stephen and Peter now appeal to the Supreme Court. HMRC are cross-appealing in relation to Anne's assessment to tax.
Date of issue
3 November 2021
Judgment appealed
[2021] EWCA Civ 1438 HTML
Linked cases
UKSC/2021/0213 Commissioners for His Majesty's Revenue and Customs (Appellant) v Fisher (Respondent) No 2 Cross appeal
Judgment details
Judgment date
21 November 2023
Neutral citation
[2023] UKSC 44
Judgment links
PDF | 334.98 KB
21 November 2023 PDF Press summary (PDF)
PDF | 188.57 KB
21 November 2023 Judgment on The National Archives (HTML version) HTML
Press summary on The National Archives (HTML Version) HTML
Judgment on BAILII (HTML version) HTML
Judgment summary
21 November 2023
Appeal
Justices
Hearing dates
Full hearing
Start date
19 July 2023
End date
20 July 2023
Watch hearings
19 July 2023 - Morning session
19 July 2023 - Afternoon session
20 July 2023 - Morning session
20 July 2023 - Afternoon session
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Change log
Last updated 16 April 2024
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