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26 April 2012 / Clive Sheldon KC
Issue: 7511 / Categories: Features , Tax , Commercial
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A justified retrospective

Clive Sheldon QC debates the pros & cons of retrospective tax legislation

The exchequer secretary to the Treasury, David Gauke MP, hit the headlines recently when he announced that the government will legislate to close a loophole under which companies (such as Barclays Bank plc) avoid the payment of corporation tax when buying back their debt. The most controversial aspect of the legislation is that it will be retrospective, subjecting to corporation tax debt purchases that occurred on or after 1 December 2011.

The retrospective nature of the proposed legislation has come in for criticism. The Adam Smith Institute has said that ex post facto law is “unacceptable because it makes coercive rules random at the behest of the rule maker”. Such legislation breaches the principle of certainty.

Without debating the rights and wrongs of this particular taxing measure, there is no doubt that retrospective tax legislation can be lawful. Domestic courts will construe legislation as having retrospective effect where this is clear on its face, and will accept the proposition that

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NEWS
NLJ's latest Charities Appeals Supplement has been published in this week’s issue
The treasury has sought to reassure the legal profession over concerns about cost, bureaucracy and independence when the Financial Conduct Authority (FCA) takes over regulation of anti-money laundering compliance
One out of two barristers has come under pressure from clients to act unethically, according to the results of this year’s Barristers’ Working Lives survey
The Court of Appeal has held the Competition Appeal Tribunal (CAT) was wrong to set aside a Competition and Markets Authority (CMA) decision on unfair pricing of phenytoin, an epilepsy drug
A flagship employment law reform is due to come into effect on 1 July, extending unfair dismissal rights to employees after six months in their job instead of two years
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