Fowler v HMRC: Divers and the Dangers of Deeming

Abstract

The United Kingdom's First-tier Tax Tribunal's ruling in Fowler v HMRC (12 April 2016) raises the question of which bilateral tax treaty provision applies to a diver who is a resident of the treaty partner (South Africa) working in the UK continental shelf waters: employment income (taxable) or business profits (exempt in the assumed absence of a permanent establishment). This is a point of treaty interpretation in a pure form lending itself to being decided as a preliminary issue of law. The writers who are from the UK and South Africa examine the issue and the ruling of the Tribunal from the point of view of both countries.

HMRC successfully appealed to the UK Upper Tribunal - see The Commissioners for HM Revenue and Customs v Martin Frederick Fowler [2017] UKUT 0219 (TCC).

Keywords: Tax Treaties, Treaty Interpretation, Income Classification

JEL Classification: K34