The publication of this book is timely in view of the UK Governments current review of the taxation position of foreign domiciliaries.
My first impression of the book was that it was eminently readable. The type face is sharp and the pages are uncluttered.
The chapter contents assists research and the inclusion of websites is an interesting feature.
The footnotes are excellent with references to cases and articles. Both the text and the footnotes contain Mr Kessler's own comments adding interest and giving food for thought.
Mr Kessler deals with each subject in a clear analytical manner and by the use of his own paragraphing and emphasis he breaks down a section into its component parts. He follows this approach by considering the actual words used and poses questions as to their meaning. This active approach is much more enjoyable and informative than wading through lines and lines of turgid text.
The taxing statutes have never been an area for the faint hearted. The language is complex and often subject to Revenue Interpretation. I delved into the section on Transfer of Assets Abroad with enthusiasm. I had always had difficulty with the construction and meaning of the ICTA 1988 anti-avoidance provisions of ss 739 and 740. The introductory chapter to this section deals with the common features of both sections and this chapter is followed by individual chapters for each of these sections with a further chapter devoted to the "Motive Defence" of s.741.
Mr Kessler's own paragraphing and emphasis leads one in a measured way to consider the limbs which make up the three transfer of asset conditions common to both sections. The introductory chapter then looks at the phraseology of the sections and the application of the interpretation in s.742 which itself needs interpreting.
The chapters dealing individually with ss 739 and 740 are put under the same Kessler microscope. These anti-avoidance provisions are at the mercy of the cases which come before the courts. Willoughby changed the landscape of s.739 in respect of "Transferor not ordinarily resident at the time of the transfer." This section now applies to anyone who becomes ordinarily resident after a transfer is made.
The s.739 chapter also looks at the trust/company structure and the possibility of double taxation taking one through this area by an appropriate example and the double taxation defence in s.743(4). Consideration of s.740 requires two sets of conditions to be satisfied, the "transfer of asset conditions" in s.740(1)(a) and the second set which are set out in the five limbs which make up s.740(1)(b). It is this approach which makes the digesting of the section so much easier. Having defined the 'benefit' and the 'recipient of the benefit' Kessler moves on to the intriguing concept of s.740 and that is 'relevant income.' Various scenarios are presented by the author and then tested against the limbs in s.740(3). It is this meticulous testing which enables the reader to absorb and understand the language and the arguments.
This particular section is completed by a very extensive look at s.741 the "Motive Defence." There is no reason why this chapter should not be read first when looking at the transfer of assets abroad section as a whole. It contains a wealth of historic references, meanings of words and phrases backed up by cases and footnotes which makes this the most informative of the chapters regarding the analysis which takes place in the interpretation of 'taxing' provisions. Avoidance, mitigation, tax reduction as Mr Kessler points out would require a book to itself but what he does give the reader is an appreciation of the range of discussion which encompasses tax avoidance and tax mitigation.
The singling out of the Transfer of Assets Abroad section is twofold; personal and illustrative. Personal because its an area with which I deal and illustrative because it demonstrates how the various aspects of the subject matter of the book are dealt with.
The UK Government review referred to above states ". the current rules determining residence and domicile have developed over the past 200 years, are complex and poorly understood.." That they are complex there is no argument, that they are poorly understood is not an excuse when a book such as James Kessler's is to hand.
This book is a tool for the practitioner and researcher alike.
Pat Stanley Solicitor Nigel Harris & Partners Jersey
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