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The Battle of Hastings-Bass

/ 25 March 2011

Terry Jordan

Readers of a certain age may remember “1066 And All That” but the recent decisions of the Court of Appeal in the linked cases of Pitt v Holt and Futter v Futter may be regarded as one (or two) in the eye for the taxpayers.

As HMRC set out in their Tax Bulletin 83, the name of the Hastings-Bass principle comes from the case of Re Hastings-Bass (deceased) [1975] Ch25 and there has been a succession of court cases over the intervening years in most of which until more recently HMRC did not seek to be parties to the action.

Put simply, in these cases unexpectedly adverse tax consequences arising from, typically, exercise by trustees of their powers, were remedied by rectification (putting right) or rescission (putting aside) what had been done and the line of cases was beginning to look like a “get out of jail free” card for the professionals involved. Sadly no longer:

In the Pitt and Futter cases the Judgement of Lloyd L J includes at para 101 the following:

“In principle, cases where an act done by trustees which appears to be within their powers can be held to be void ought in my judgement to be kept to a minimum, just as at common law the cases where a transaction is void, rather than voidable, are few and far between.”

The Court refused leave to appeal but it is understood that the parties intend nevertheless to appeal direct to the Supreme Court.

Should you wish to discuss the relevance of these cases (regarded by him, he says, as part of life’s rich tapestry) to your own clients, please get in touch with Terry Jordan or your usual BKL contact.

Terry Jordan

Senior Adviser, Private Client

T +44 (0)20 8922 9360

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