[2011] UKFTT 398 (TC)

TC01253
Appeal number TC/2010/00448

Capital gains tax – claim by Appellant for rollover relief on the basis that the consequential gain arising on the sale of its business was wholly in respect of the goodwill - appeal against HMRC’s decision to disallow part of the Appellant’s claim as being compensation for the termination of its Mercedes dealership – appeal allowed

FIRST-TIER TRIBUNAL

TAX 

	MERTRUX LIMITED	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS	Respondents

				TRIBUNAL: S.M.G.RADFORD (TRIBUNAL JUDGE)
						R.WATTS DAVIES F.C.I.P.D M.I.H.

Sitting in public at 45 Bedford Square, London WC1 on 6 June 2011

Mr R Bramwell for the Appellant

Mr A Nablatt, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents

© CROWN COPYRIGHT 2011

DECISION

1.	This is an appeal against an amendment made by HMRC to the Appellant’s corporation tax return for the accounting period ended 31 December 2003. In that period the Appellant received the sum of £1,705,502 as a payment for the sale of its business. 
2.	The Appellant made a claim for roll-over relief in respect of the whole of the consequential gain on the basis that the gain arose from the disposal of the Appellant’s goodwill.
3.	The amendment by HMRC took the form of disallowing the claim for roll-over relief by fifty percent. This was on the basis of HMRC’s view that half the payment was in respect of a disposal of goodwill for which the claim for roll-over relief was valid and half was in respect of the disposal of an asset not within the qualifying classes as defined for the purposes of roll-over relief by Section 155 of the Taxation of Capital Gains Act 1992 (“TCGA”). 
Background and facts
4.	The distribution of Mercedes-Benz vehicles in the UK is organised through a UK subsidiary of the Daimler-Chrysler group – Daimler-Chrysler (UK) Ltd (“DCUK”). In 2000 DCUK resolved to reorganise its dealership network. By notices issued to each of its dealers it purported to terminate their dealership agreements on 31 December 2001.
5.	Group litigation proceedings were commenced on behalf of a number of the dealers including the Appellant who sought to challenge the purported termination. In July 2001 the proceedings were compromised. As a result of the compromise each dealer’s agreement was amended by a Deed of Variation and Termination (“DoVT”). The Appellant entered into a DoVT dated 13 July 2001. 
6.	 It was agreed as part of the DoVT that the dealership would end no later than 30 June 2003 but the dealer could elect for an earlier cessation date. The DoVT provided that the dealership would be taken over by either a dealer nominated by DCUK or by DCUK itself. In either case the outgoing dealer would be paid a Territory Release Payment (“TRP”) by the incoming dealer or by DCUK if there were no incoming dealer.
7.	Clause 8.1 of the DoVT stated that for the purposes of Clause 8 it was assumed that before the termination of the dealership, an incoming dealer or DCUK would have entered into a transfer agreement by virtue of which it would buy the outgoing dealer’s business as a going concern.
8.	Clause 8.1 of the DoVT provided that on the termination of the existing dealership the incoming dealer or DCUK would pay to the outgoing dealer (a) the TRP; (b) a contribution to the dealer’s transaction costs; (c) where clause 5.9 applied, an Investment Reimbursement; (d) the price of assets to be transferred pursuant to the Transfer Agreement.
9.	As to (d), clause 9.4 provided that the transfer agreement was to include terms relating to the items listed in 9.4(a)(i). These included tools and parts.
10.	Clause 10 of the DoVT provided for the transfer of staff to the incoming dealer or DCUK.
11.	Clause 5 of the DoVT provided for a continuation of normal relations between the existing dealer and DCUK during the transitional period, and for the maintenance by the dealer of the “Revised Core Standards”. By clause 5.3 the dealer acknowledged that failure to adhere to the Revised Core Standards was likely to have an adverse effect on the business and might lead to a challenge by DCUK to the amount of the TRP.
12.	Clause 11 of the DoVT provided for disputes to be determined by an expert panel.
13.	The TRP was to be calculated in accordance with the terms of Schedule 2 of the DoVT.  By clause 4 of the DoVT, the TRP could be a “12 month TRP” an “18 month TRP” or a “24-month TPR. A 12 month TRP was payable if the dealer chose to continue for the full 2 years to 30 June 2003. An 18 month TRP was payable if the dealer elected to terminate on 31 December 2002; A 24 month TRP was payable if the dealer elected to terminate on 30 June 2002 or 1 January 2002.
14.	The Appellant entered into the DoVT on July 13 2001. It elected for a cessation date of 30 June 2002 and thus became entitled to a 24 month TRP.
15.	By agreement the cessation date of the Appellant’s Mercedes dealership was postponed for a minimum of a further nine months to 31 March 2003 with termination on three months’ notice period expiring on or after 31 March 2003.  This postponement did not alter the calculation of the TRP. A cessation on 30 June 2003 would otherwise have resulted in a 12 month TRP. 
16.	Eventually the transfer occurred on 31 July 2003 without prejudice to the 24 month TRP. A transfer agreement between the Appellant and Leadley Limited was entered into on 31 July 2003.
17.	The amount paid by Leadleys was £1,752,698. This amount was fixed by the expert panel after a reference by Leadleys. In its company tax return, the Appellant treated the payment as having been paid entirely on account of goodwill.
18.	HMRC considered that the amount paid to the Appellant comprised two elements, namely a ‘basic’ TRP equating to goodwill and secondly an ‘enhanced’ TRP reflecting compensation paid for the early termination of its dealership.  An apportionment of the TRP to fifty percent goodwill and fifty percent compensation was considered by HMRC to be correct. Accordingly HMRC issued a notice of amendment on 27 October 2009 to the Appellant’s corporation tax return for the period ended 31 December 2003. The amendment showed gross capital gains of £852,751 on which corporation tax was chargeable.
19.	The Appellant appealed against the notice of amendment on 5 November 2009 and applied to postpone payment of the additional chargeable tax.
The Legislation
20.	Section 21 of the TCGA states:
(1) All forms of property shall be assets for the purposes of this Act, whether situated in the United Kingdom or not, including—
(a) options, debts and incorporeal property generally, and
(b) currency, with the exception (subject to express provision to the contrary) of sterling,
(c) any form of property created by the person disposing of it, or otherwise coming to be owned without being acquired.

21.	Section 22of the TCGA states 
(1) Subject to sections 23 and 26(1), and to any other exceptions in this Act, there is for the purposes of this Act a disposal of assets by their owner where any capital sum is derived from assets notwithstanding that no asset is acquired by the person paying the capital sum, and this subsection applies in particular to—

(a) capital sums received by way of compensation for any kind of damage or injury to assets or for the loss, destruction or dissipation of assets or for any depreciation or risk of depreciation of an asset,

(b) capital sums received under a policy of insurance of the risk of any kind of damage or injury to, or the loss or depreciation of, assets,

(c) capital sums received in return for forfeiture or surrender of rights, or for refraining from exercising rights, and

(d) capital sums received as consideration for use or exploitation of assets.

(2) In the case of a disposal within paragraph (a), (b), (c) or (d) of subsection (1) above, the time of the disposal shall be the time when the capital sum is received as described in that subsection.

22.	Section 155 of the TCGA provides that that a claim for roll-over relief is admissible only in respect of the disposal of assets within the classes defined by s.155. The only relevant class in this matter is class 4 which is goodwill.
23.	Section 152(11) of the TCGA states :
“Without prejudice to section 52(4), where consideration is given for the acquisition or disposal of assets some or part of which are assets in relation to which a claim under this section applies, and some or part of which are not, the consideration shall be apportioned in such manner as is just and reasonable.”

Appellant’s submissions 
24.	Mr Bramwell stated that it was important to realise from the outset that the DoVT was a compromise agreement which contained generic terms which were applicable to all the relevant dealers.
25.	By virtue of the DoVT the Appellant agreed to sell its business to an unascertained third party who had to complete the deal with the Appellant and who was referred to in the DoVT as the incoming dealer. In default of an incoming dealer the deal was to be completed with DCUK.
26.	There was no dispute between the parties that the price received by the Appellant was a capital receipt. The price to be paid consisted of two factors – the duration of the transition period and a formula which was to be the sum of the accounting profits.
27.	The issue between the parties was whether HMRC was correct in apportioning half of the TRP to something other than goodwill, namely for the early termination of the Appellant’s dealer agreement.
28.	If the Appellant’s contention was correct, the amendment fell to be discharged on the basis that the Appellant had made a valid claim for roll-over relief in respect of the whole gain; if HMRC’s contention was correct, the amendment would stand without further adjustment.
29.	Mr Bramwell submitted that the DoVT envisaged a three party transaction between DCUK, the Appellant and an incoming dealer. The payment by Leadleys, the incoming dealer, was for the acquisition of the Appellant’s business as a going concern.
30.	He contended that it could not be for something other than what Leadleys acquired. The only basis that HMRC had to resist the conclusion that the whole of the price was for the goodwill was to contend that it was to compensate the Appellant for the loss of the dealership. However there was no reason for Leadleys to compensate the Appellant for the loss of the dealership.
31.	Mr Bramwell submitted that the transfer agreement between Leadleys and the Appellant spoke for itself and HMRC had to show that the price paid was for something other than the Appellant’s business.
32.	Although HMRC had contended that a significant part of the goodwill belonged to DCUK Mr Bramwell contended that it was not possible to separate the business in this way as the right to sell and service Mercedes cars was the business.
33.	Mr Bramwell submitted that it was noteworthy that HMRC did not state what it understood by “goodwill” for the purposes of Section 155 of the TCGA.
34.	He submitted that the question was exhaustively examined by the Special Commissioner in Balloon Promotions Ltd [2006] STC (SCD) 167. He submitted that the Special Commissioner’s “Conclusions on the Construction of Goodwill in TCGA 1992” were set out at paragraphs.159-170 of the decision. He submitted that for present purposes, the key paragraph was paragraph 163:
“Goodwill should be looked at as a whole and includes whatever adds value to a business by reason of situation, name and reputation, connection, introduction to old customers and absence from competition. The precise composition of goodwill will vary in different trades and in different businesses in the same trade.” 

35.	At paragraphs 248 and 249 of the decision the Special Commissioner said :
248. “I have previously set out my conclusions on the salient features of the legal concept of goodwill.  My starting point is that the consideration paid for the appellants’ business incorporated an amount representing the excess over and above the true and fair value of the tangible assets. The existence of that excess combined with the profitability of the businesses were indicative that the businesses had added value which is an essential characteristic of the legal concept of goodwill. The added value was inseparable from the businesses which were sold as going concerns.....
	 249. I conclude from the above analysis that the added value as represented by the excess consideration conforms with the salient features for the concept of goodwill as construed in TCGA 1992. The fact that the added value was attached to the businesses and the appellants owned the businesses are persuasive that the appellants had goodwill to sell to PizzaExpress. This goodwill was separate and distinct from the goodwill owned by PizzaExpress in its name and associated intellectual property rights.”

36.	Mr Bramwell submitted that on the basis of the concept of goodwill as described in the above case, the case for the Appellant was simply that the whole goodwill of the business of the Appellant was founded on its dealer agreement. As a result of that agreement customers came to buy new and used Mercedes cars and came to have their Mercedes cars serviced.  Mercedes dealerships were located sufficiently far apart to create local monopolies so that whilst there was nothing to stop customers from taking their business outside their locality, for practical reasons there was a huge incentive not to do so.
37.	Mr Bramwell said that in terms of paragraph 163 of Balloon Promotions the relevant “connection” was with DCUK. Its dealer agreement entitled the Appellant to a supply of new cars, to sell used cars under the “Signature” scheme and to service cars as required by the terms of the Mercedes warranty. Without its dealer agreement the Appellant would not have been able to attract prospective purchasers of Mercedes cars or to offer warranty compliant servicing. At the same time, its dealer agreement protected the Appellant from local competition.
38.	 Mr Bramwell submitted that HMRC had contended that the TRP fell to be apportioned between goodwill and the loss of the dealer agreement, the apportionment to be on such basis as was just and reasonable. An apportionment was possible however only if the dealer agreement was an asset separate from the goodwill but HMRC was unable to say how the goodwill of a Mercedes dealer could be described otherwise than by reference to its rights under its dealer agreement.
39.	The dealer agreement was an integral part of the Appellant’s goodwill and the structure of the DoVT confirmed that the payment was wholly in respect of goodwill.
40.	Leadleys were not bound by the DoVT. DCUK tried unsuccessfully for some time to find an incoming dealer and eventually they found Leadleys. They offered them the package at a fixed price and on acceptance Leadleys became bound by the transfer agreement which transferred to it the Appellant’s business.
41.	Mr Bramwell submitted that this was the sale of a going concern with the price to be paid determined by an expert panel.
42.	The price paid was for the business as a going concern. The amount by which the price exceeded the value of the tangible assets was the payment for goodwill absent some extrinsic evidence that it was for some other asset.
43.	The Special Commissioner in Balloon Promotions held that there was nothing to displace the argument that the payment was for the goodwill.
44.	The whole of the goodwill was founded on the dealer agreement. The goodwill only had a value to another party who had a dealer agreement. A Mercedes dealer has goodwill with its customers who have Mercedes cars because it has the Mercedes franchise.
45.	The Appellant did have goodwill but could only exploit it through someone who had a Mercedes dealer agreement.
46.	The Mercedes brand and associated trade marks belong to the Daimler Chrysler group, but under its dealer agreement the Appellant was required to hold itself out as a Mercedes dealer and was licensed to use the Mercedes trade marks and symbols for that purpose. 
47.	Mr Bramwell asserted that HMRC had contended that it did not accept that the enhanced element of the TRP payment reflected the Appellant’s goodwill in the business. HMRC had contended that a significant part of the goodwill associated with the business existed in the reputation and customer “pulling power” of Mercedes products and the Mercedes brand which belonged to DCUK (or its ultimate parent). Mercedes cars were well known, had a high reputation and were regarded as a quality/luxury product.  Many people wish to buy them precisely because they were Mercedes cars.
48.	Mr Bramwell submitted that this contention by HMRC appeared to suggest that because the brands etc. belonged to the Daimler Chrysler group, the right to use those brands could not form part of the Appellant’s goodwill.
49.	Mr Bramwell submitted that the background to the DoVT was a dispute about DCUK’s rights of termination and that the correct way to look at the scaling down of the TRP over time was that it reflected the risk that over a long run-off period, goodwill was likely to decline in value as the management lost interest and the workforce became unsettled.
50.	By virtue of Schedule 2 of the DoVT the TRP calculation was by reference to the outgoing dealer’s profit for an accounting period ended on or before April 30 2001 with adjustments for notional rent and other matters. Clause 11.2 of the DoVT expressly provided for the reduction of the TRP where the dealer had breached the Revised Core Standards and thereby caused a reduction in the value of the goodwill of the business.
51.	HMRC had contended that the TRP fell to be apportioned between goodwill and the loss of the Dealer Agreement, the apportionment to be on such basis as is just and reasonable. An apportionment was possible only if the dealer agreement was an asset separate from goodwill but HMRC was unable to say how the goodwill of a Mercedes dealer could be described otherwise than by reference to the rights and obligations under the dealer agreement. 
52.	Mr Bramwell submitted that this omission was fatal to HMRC’s case. The dealer’s manner of exploiting the rights was certainly capable of enhancing or diminishing their value, but the rights formed the core of his goodwill. The Appellant submitted that this was a self-evident proposition and no apportionment fell to be made.
HMRC’s Submissions
53.	Mr Nawbatt submitted that the TRP originated from the DoVT and the incoming dealer paid to obtain the Mercedes dealership.
54.	The flaw in the Appellant’s argument was that it expected HMRC to believe that the goodwill doubled depending on whether it was valued at June 2002 or June 2003. The difference was some £850,000 and the Appellant had failed to explain why there was this difference in the price.
55.	Mr Nawbatt submitted that it was necessary to look at the context in which the DoVT arose. It arose because DCUK wanted to terminate the dealerships but the dealers wanted the full rights they were due under their dealerships. This right was to be given twenty-four months notice of any termination of their dealership.
56.	DCUK wished to terminate the dealerships with twelve months notice and entered the DoVT to achieve early termination. Mr Nawbatt submitted that the extra money provided for in the DoVT was an enhancement to the dealers to give up their dealerships in twelve months.
57.	Mr Nawbatt contended that the character of the extra payment was an incentive to terminate the dealership in twelve months rather than the twenty-four months they were due under their dealership agreement.
58.	He distinguished Balloon Promotions by submitting that in that case there was true goodwill which the franchisees had developed. If the Appellant was submitting that you could not separate the goodwill from the dealership then it was HMRC’s submission that there was zero goodwill in the business because you could not have any goodwill exclusive of the Mercedes brand.
59.	In Balloon Promotions the franchise agreement was of nominal value so there was no case for apportionment. All the value in the businesses was down to the individual franchisees and if the Special Commissioner had thought that there was value in the franchise agreement then he would have apportioned the payment accordingly but he had found that none of the goodwill attached to the Pizza Express brand. All the restaurants were established in their own right before the sale to Pizza Express. The entire payment made to the franchisees could be attributed to the added value they had built up over and above the Pizza Express brand.
60.	In this matter it was HMRC’s case that you could not differentiate the goodwill from the Mercedes brand and therefore the payment had to be compensation for the termination of the dealership. Even if there was some added value it was necessary to apportion the payment into that which was for the Appellant’s goodwill and that which represented the value of the dealership to the Appellant and the Appellant should be compensated for the latter.
61.	Mr Nawbatt submitted that the Appellant’s contention that the entire payment of the TRP was in respect of goodwill was fundamentally flawed. The incoming dealer, Leadleys, through payment of the TRP, did not acquire any of the Appellant’s rights under the dealer agreement. The incoming dealer only acquired the exclusive right to sell and service Mercedes cars in a certain geographic area through a separate agreement with DCUK.  The Appellant’s dealer agreement terminated on 31 July 2003 and upon termination whatever goodwill in the Appellant’s business which derived from its dealer agreement vanished from the business. The incoming dealer could not therefore have paid anything in respect of that goodwill.
62.	Mr Nawbatt submitted that if it was truly the case that the goodwill in the Appellant’s business was entirely dependent upon its dealer agreement, it was arguable that the business had no goodwill upon termination of that agreement such that the Appellant had no goodwill to transfer and that therefore the entire TRP was compensation for something other than disposal of goodwill.
63.	HMRC had conceded however for the purposes of this appeal that there was some goodwill in the Appellant’s business that transferred to the incoming dealer, but this was limited to elements other than the right to sell and service Mercedes vehicles which derived from its dealer agreement, for example, the staff and customer connections. As the main source of the Appellant’s goodwill was its dealer agreement, which did not transfer to the incoming dealer, HMRC submitted that at the very least the enhanced element of the TRP was paid for something other than goodwill.
64.	HMRC accepted that the Appellant was required to agree to certain Revised Core Standards through the extended period of its dealer agreement, and that it was recognised that failure to accord to those standards could result in a lower TRP. However, in Mr Nawbatt’s submission that merely supported a contention that there was some goodwill in the Appellant’s business discrete from the Mercedes connection, not that all of the TRP payment was in respect of goodwill.
65.	Mr Nawbatt submitted that as to the rationale for the inverse proportion of the TRP, this was a factor strongly supportive of HMRC’s case rather than that of the Appellant’s. The starting point to calculate the TRP was to determine the twelve month TRP, calculated by reference to the Appellant’s profits over a twelve month period, as set out at paragraph 2 of Schedule 2 to the DoVT. The figure was then doubled to produce the twenty-four month TRP because the Appellant elected for early termination.
66.	Mr Nawbatt contended that the Appellant was incorrect to assert that the TRP “scaled down” over time, because that argument took as its starting point the twenty-four month TRP. 
67.	He submitted that the correct analysis was to start with the basic twelve month TRP and then determine to what the enhanced element of the twenty-four month TRP related. The Appellant had failed to address how it could be that the goodwill in the Appellant’s business effectively doubled because of the early termination.
68.	 In any event, the TRP could not have been scaled down for the risk that goodwill in the business declined because there was a contractual mechanism in place under paragraph 2.3 of Schedule 2 to the DoVT for a reduction in the TRP where there was an actual impairment in goodwill. 
69.	Mr Nawbatt contended that it was inherently unlikely that it was the intention of the dealers in signing up to the DoVT that they would receive half the true value of the goodwill in the business if they terminated a year later because of a risk that their actions would impair goodwill.
70.	The Appellant had asserted that it was the intention of DCUK to encourage dealers to terminate early in order to preserve goodwill in the business. Mr Nawbatt submitted that whatever DCUK’s reason for encouraging early termination, this was effected through paying them a premium to the profit that could be derived from continuing to operate their dealer agreement for another year.
71.	Under the dealer agreements as amended by the DoVT, the dealers had the right to sell and service Mercedes cars until 30 June 2003. The enhanced element of the TRP was paid to the dealers in order to encourage them to give up that right.
72.	He submitted therefore that for the purposes of section 22(1)(c) of TCGA 1992 the enhanced element paid to the Appellant was a capital sum paid in return for forfeiture or surrender of rights under its dealer agreement. Accordingly there was a deemed disposal of rights under the dealer agreement.
73.	In conclusion he submitted that the tax treatment of the two elements of the TRP was distinct. The enhanced element of the TRP was paid for the forfeiture or surrender of the Appellant’s rights to sell and service Mercedes cars under its dealer agreement. The enhanced element was therefore deemed to be a capital sum derived from disposal of an asset such that CGT was chargeable in the accounting period ending 31 December 2003. It was just not possible to have any goodwill exclusive of the Mercedes brand.
Findings
74.	We found that the DoVT was a global compromise agreement negotiated by a number of dealers. It could not therefore be expected to produce a coherent result in every case. There was nothing in the DoVT which specified any right to compensation for the dealers. 
75.	HMRC contended that it was inherently unlikely that it was the intention of the dealers in signing up to the DoVT that they would receive half the true value of the goodwill in the business if they terminated a year later because of a risk that their actions would impair goodwill. We found however that by virtue of the fact that the agreement was a compromise negotiated by a number of dealers it would be pure speculation to make any attempt to determine their intention.
76.	Leadleys were offered the chance to buy the business as a going concern at a certain price. The price paid exceeded the value of the tangible assets and therefore the natural conclusion is that the balance of the payment was for the goodwill absent some extrinsic evidence that it was for some other asset. We found nothing to displace the fact that the excess was for the goodwill.
77.	We found that HMRC were unable to show that the transfer agreement between Leadleys and the Appellant referred to an apportionment of the payment between the payment for the business and compensation for the loss of the dealership. 
78.	We found that Leadleys were solely concerned with acquiring the business at the agreed price and that price was paid for the business and nothing else. Leadleys had no reason to pay compensation for the loss of the dealership.
79.	We found that the whole of the goodwill was founded on the dealer agreement. A Mercedes dealer has goodwill with its customers because it has the Mercedes franchise.
80.	Over time the Appellant had built up a volume of goodwill with its customers, all of whom had Mercedes cars. We found that the Appellant did have goodwill but could only exploit it through someone who held the Mercedes franchise.
81.	We found that the basic flaw with HMRC’s submissions was that it could not accept that as a result of the goodwill in the Appellant’s business being dependent upon its dealer agreement, on the sale of its business to Leadleys its goodwill was acquired by Leadleys along with the Mercedes dealership.
82.	Although HMRC queried the Appellant’s submission that the goodwill was worth some £850,000 when valued a year earlier we found it very probable that over a long run-off period the goodwill would decline in value as the management lost interest and the employees became unsettled resulting in the customers becoming forced to look further afield.
83.	Clause 11.2 of the DoVT expressly provided for the reduction of the TRP where the dealer had breached the Revised Core Standards and thereby caused a reduction in the value of the goodwill of the business.
84.	We found therefore that the whole amount, by which the price received by the Appellant from Leadleys for its business exceeded the value of the tangible assets, was in respect of the goodwill and that the whole of the consequential gain is therefore eligible for rollover relief. 
Decision
85.	The appeal is allowed and the amendment to the Appellant’s corporation tax return is hereby discharged.
86.	This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.   The application must be received by this Tribunal not later than 56 days after this decision is sent to that party.  The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

TRIBUNAL JUDGE
RELEASE DATE: 21 June 2011