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- Section 28 and 43(4) - Finance Act, 1960 CASES REFERRED TO IRC v. Brebner [1970] 76 ITR 436 (HL) and IRC v. Brook [1968] Ch. 255 ORDER [CHANCERY DIVISION] December 21. Cross J.- read the following judgment, in which he stated the facts, contentions and decisions as set out in the case, read the relevant passages of the Finance Act, 1960, ss. 28 and 43, and continued : 2. Although they do not say so in terms, the special commissioners plainly considered that the transaction in question was carried out forbona fide commercial reasons, and the Inland Revenue Commissioners did not challenge that conclusion before me. 3. Turning now to the second hurdle which the taxpayer has to surmount under section 28, one must, of course, bear in mind that it does not follow that because a tax advantage was obtained in the course of a transaction therefore the obtaining of that tax advantage was the main object, or one of the main objects, of the transaction. As Lord Upjohn pointed out in Inland Revenue Commissioners v. Brebner[1970] 76 ITR 436 (HL), no commercial man in his senses carries out a commercial transaction otherwise than in the way which will result in his paying the least possible amount of tax. Nevertheless, looking at the transaction as a whole it may be reasonable to say that the obtaining of the tax advantage was merely incidental and not one of its main objects. The question, as the House of Lords stressed in theBrebner case 1, is one to which different minds may easily give different answers. In that case, the special commissioners had decided that the obtaining of the tax advantages in question was not one of the main objects of the transaction, and the House of Lords refused to disturb that decision ; but they pointed out-indeed, it was conceded in argument-that if the commissioners in that case had reached the contrary conclusion their decision would have been equally unassailable. As I see it, therefore, I cannot interfere with the decision of the special commissioners on this point unless I am satisfied that the view that it was one of the main objects of this transaction to obtain a tax advantage was one which no reasonable man could possibly form. I…

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