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Implied representation of genuineness


"[113] SKAT in that way now relies on the following facts, namely that: Goal was a leading tax reclaim specialist; Goal was submitting large numbers of WHT refund claims; Goal chose to describe the dividend advices it submitted as "evidence of payment and tax deduction …" and put its name (albeit as the taxpayers' agent) to the Form 06.003 forms with their statements that what was being claimed was a refund of tax that had been paid; from June 2014, Goal had the additional direct contacts with Mr Nielsen, as referred to in paragraph 107(iii) above; SKAT's publicly available 'Legal Guide' stated at all material times that where a taxpayer was acting through an agent, "the representative replaces the party and thus has all the party's rights and obligations"; there was (so SKAT asserts) the imbalance of information between Goal and SKAT, as referred to in paragraph 106(ii) above.
[114] Whether in the circumstances Goal impliedly represented to SKAT that it (Goal) believed the taxpayer was making a genuine claim falls to be judged in the same way any allegation of an implied representation is judged, by asking whether a reasonable person in SKAT's position would have taken it from Goal's words and conduct that Goal was saying that (as opposed to something different, or nothing, on that topic). That is what it means to ask in this case "what a reasonable person would have inferred was being represented by the representor's words and conduct in their context", per Toulson J (as he was then) in IFE Fund SA v Goldman Sachs International [2006] 2 CLC 1043 at [50]. In that regard, it can be helpful to consider "whether a reasonable representee would naturally assume that the true state of facts did not exist and that, if it did, he would necessarily have been informed of it" (Property Alliance Group Ltd v Royal Bank of Scotland plc [2018] 1 WLR 3529 (CA) at [132], approving a dictum of Colman J in Geest plc v Fyffes plc [1999] 1 All ER (Comm) 672 at 683B, albeit emphasising that that "is not to water down the requirement that there must be clear words or clear conduct of the representor from which the relevant representation can be implied").
[115] For completeness, I would say that the helpful test derived from Colman J's dictum is only one manifestation of a broader notion, because it is constructed around only one possibly sufficient 'but for' conclusion. If the representee would reasonably and naturally assume that the true state of facts did not exist because he would take it as obvious that, if it did, the communication or conduct said to give rise to the implied representation would never have been sent or occurred, that might equally properly found the conclusion that the representation was indeed implied as alleged.
[116] It is contentious and requires a trial to resolve whether there was the information imbalance that SKAT claims there was, and while it will be Goal's case that it never saw or considered SKAT's Legal Guide, that is not satisfactorily evidenced prior to disclosure or trial witness statements and there will be room to explore in any event, requiring a trial, whether Goal ought reasonably to have been aware of it and/or whether SKAT could reasonably, or did in fact, assume that professional tax reclaim agents dealing with it would make themselves aware of it. Those points aside, I did not understand the matters highlighted by SKAT (paragraph 113 above) to be much, if at all, in dispute.
[117] I could not say, therefore, that SKAT does not have a realistic prospect of proving at trial that those highlighted matters are all matters of fact in this case. If it does establish all those matters, then I regard it as realistically arguable that the right conclusion will be that Goal's words and conduct in submitting a WHT refund claim on behalf of a taxpayer implied a statement, on its own account, that it believed it was submitting a genuine claim. I agree with Mr Goldsmith QC that an implied representation of that kind is not unknown to the law (see UBS AG v Kommunale Wasserwerke Leipzig GmbH [2014] EWHC 3625 (Comm), per Males J (as he was then) at [740], and perhaps also, for a similar idea, Sasea Finance Ltd v KPMG [2000] 1 All ER 676 at 681c-h; these are both cases that, to be clear, no one could suggest were on all fours with this case, but that is not the present point). I do not think it can be said that the fuller detail and context in and of those matters that will inevitably come through at a trial could not influence the outcome, nor could I predict what that fuller detail and context might look like. So this is not an occasion for 'grasping a nettle' and trying to form final views, for example whether if paragraph 113 above proved to be the length and breadth of it at trial I would find the implied representation proved."
 (SKAT v. Solo Capital Partners LLP [2020] EWHC 1624 (Comm), Andrew Barker J)

Implied representation of genuineness

Duty of care of tax agent to tax authority


"[121]...This is not an ordinary, arm's length, business transaction under English law for which caveat emptor remains a guiding principle underlying the analysis of many contractual and non-contractual incidents of the interactions between the parties. This is taxpayers dealing with one of their tax authorities and seeking to ensure that they pay what they should have to pay, but not more than what they should have to pay, in taxes.
[122] Take for instance the US domiciled, and US tax exempt, pension funds that were among Goal's clients via Solo. At a simple level SKAT was not their tax authority, since by definition they answered to the IRS, which is a function of the US Treasury operating under US Federal law, as regards their taxation obligations. The matter is not so simple, or does not stop there, however, precisely because on SKAT's analysis of the implications of the making of a WHT refund claim, which to this extent are agreed by Goal, those pension funds were claiming, in substance, to have been taxed by SKAT, i.e. to have been treated by SKAT's WHT rules in the same way as Danish taxpayers, so that pursuant to the applicable US-Danish DTA and the Danish implementing legislation they, the taxpayers, were owed a tax refund by SKAT.
[123] Prior to factoring in any particular features that may be material of the world of DTA and international dividend taxation arbitrage, or of the Danish way of doing things (if that is a meaningful notion), the starting analogy here, as it seems to me, will not be commercial agents negotiating business transactions with contractual counterparties, but independent bookkeepers, accountants or tax agents preparing and submitting clients' tax returns for them. I was not taken to any authority holding for or against the proposition that such agents have, or may have, a liability in negligence to the tax authority for submitting tax returns they should reasonably have realised were or might be dishonest. Absent binding authority on that sort of question, I do not regard it as suited to a summary determination.
[124] Taking into account, then, the more specific matters relied on by SKAT, as set out or summarised in paragraphs 101 to 103, 105 to 108 and 111 above, on which I could not say that SKAT does not have a realistic prospect of proving those matters at trial (except where I expressed a contrary view in those paragraphs), I am quite unable to say that there is no realistic prospect of success for the argument that Goal owed a duty of care in relation to its belief, if implicitly communicated to SKAT as alleged by SKAT, that WHT refund claims submitted by it were genuine claims on the part of the taxpayers in question."(SKAT v. Solo Capital Partners LLP [2020] EWHC 1624 (Comm), Andrew Barker J)

Duty of care of tax agent to tax authority
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