Overseas Chambers of Peter Harris

French usufruits: has the French Cour de cassation supplied yet another nail to be hammered into the coffin lid of HMRC's interpretation of s.43(2) ITA 1984? Nemo taxet quod non-habet?

February 7th 2023

A recent decision of the Cour de Cassation confirms that a usufruit granted out of a usufruit possessed by an individual donor can only extinguish on the death of the donor, not by reference to the death of the donee under art. 617 Code civ.

This imperils HMRC's continuing invocation of s.43(2) ITA 1984 attempting to treat a foreign legal right in rem as a form of interest in possession settlement without there being the trust necessary for the section to apply.

An interesting application of the old principle nemo dat quod non habet?

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