Fisher: ‘non-discriminatory’ direct tax measure infringes EU Treaty

The transfer of assets abroad (TOAA) rules undoubtedly infringed the EU freedom of establishment and free movement of capital so far as applicable to transfers of assets to another member state. However, the FTT case of Fisher entailed the transfer of assets to Gibraltar, which for EU law purposes is treated as part of the UK. Of the three UK-resident taxpayers, two were UK nationals but one was Irish. Although the TOAA rules applied equally in each case – i.e. they were ‘non-discriminatory’ – the tribunal nevertheless held that they breached the freedom of establishment in their application to the Irish national. In this regard, the case is of such significance that an onward appeal is almost inevitable.