Eclipse, trading and the Upper Tribunal’s jurisdiction in appeal cases

The Upper Tribunal in Eclipse Film Partners No. 35 LLP v HMRC [2013] UKUT 0639 (TCC) has confirmed that a film partnership was not trading. Eclipse is the fifth case before the UT in which either the taxpayer or HMRC has sought (unsuccessfully) to rely on the Supreme Court decision in Jones. This was a non-tax case where Lord Carnwath suggested that an expert appellate tribunal ‘should be permitted to venture more freely into the “grey area” separating fact from law than an ordinary court’ with ‘issues of law’ in this context being ‘interpreted as extending to any issues of general principle affecting the specialist jurisdiction’. Eclipse illustrates how difficult appellants in tax cases will find it to persuade judges to take a more expansive approach to appeals. Nonetheless given comments made by some of the Upper Tribunal judges to date it seems Jones arguments...