14 Mar 2022

Scope of the ring-fence: Result of the appeal in the Royal Bank of Canada case

In August 2020 we published a newsletter on a First-tier Tribunal (‘FTT’) case that considered whether an oil and gas royalty interest held by a non-UK resident gave rise to ring-fence income and whether the relevant treaty allowed HMRC to tax the income.  That newsletter can be found here: https://cwenergy.co.uk/scope-of-the-ring-fence-royal-bank-of-canada-case

As we reported at the time the taxpayer lost on both counts at the FFT and appealed. The appeal was heard by the Upper Tribunal (‘UT’) in December and the decision was published on 17 February 2022.  The UT confirmed the decision of the FTT on both the domestic law and treaty matters and consequently found that the royalty income was taxable as ring-fence income in the UK.

In terms of the treaty position, the UTT agreed that the oil royalty constituted “rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits…” and therefore fell within the definition of immovable property under the treaty.

The key domestic law finding in terms of the wider relevance of this decision is the UT’s decision on the meaning of the “benefit of” exploration or exploitation rights. There was very little analysis of the meaning of this term in the FTT decision, and unfortunately, there is not much more in the UT decision.

The UT found that the oil royalty constituted “rights to the benefit of the oil because, provided that the oil was sold at a sufficiently high price to generate a payment of the royalty, the Bank would thereby benefit from the oil produced..” and the reference to benefit “is capable of including a wide range of arrangements, whether proprietary or contractual or otherwise, giving rise to a benefit, including a commercial benefit.”

As a consequence, the UT dismissed the grounds for appeal and affirmed that the UK domestic tax rules would, based on the facts of this case, treat the income arising as subject to tax in the UK as ring-fence trading income.

One matter to note is that this is a UT decision and therefore does set legal precedent.

The implications for taxpayers are as we set out in our original newsletter when the FTT decision was published.  Taxpayers should review any similar arrangements already in place

Generally, we see royalties of the type considered in this case to be created as a result of the transfer of interests in oil fields. It may however to be possible to distinguish some forms of contingent deferred consideration from the royalty in this case.

In today’s oil and gas price environment mechanisms that share the benefit of price fluctuations have remained common in transactions.  Such mechanisms should be considered carefully.

CW Energy LLP
March 2022