Latest challenge to business rates mitigation company

The Respondent companies operated schemes to enable landlords of empty property to avoid paying business rates.

Under a scheme operated by a predecessor (the original scheme), a landlord would let an empty property to an SPV, which then became liable for the business rates. The SPV would be placed into an MVL, thereby removing its liability for rates. The predecessor company had been wound up in the public interest.

The present companies operated a new scheme whereby the SPV entered into a lease for a fixed term of three years, but which could be terminated early by the landlord, contingent on payment of a termination premium to the SPV.

The Secretary of State had asserted that the companies operated their business without commercial probity and sought orders that the companies be wound up in the public interest. The Court declined to make the orders sought and the Secretary of State appealed.

The Court of Appeal dismissed the appeal.

The winding of the predecessor company did not mean that all business rates mitigation schemes offended against the public interest. The Court held that the new scheme could be distinguished on its facts and that the judge at first instance had been right to find that the termination premium was a significant difference to the old scheme as it created a genuine (if uncommercial) contingent asset for each SPV.

Furthermore, there was no harm to the public and the Secretary of State had been unable to identify a category of persons who had been harmed.

Secretary of State for Business Energy and Industrial Strategy v PAGE Asset Preservation Limited and another [2020] EWCA Civ 1017

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