A landmark ruling by the UK Supreme Court in June 2026 has ended a long-running tax dispute involving Alex Gerko and other members of a forex trading partnership. The Court found that profits held back by a corporate member and later paid out to traders were taxable income, despite the elaborate deferral scheme. In essence, the scheme could not escape income tax on deferred trader profits through clever structuring.
HFFX LLP was a foreign exchange trading partnership with both individual and corporate members. An internal Capital Allocation Plan (CAP) allowed part of each trader’s bonus to be paid to the corporate member (GSAM) instead. GSAM invested the funds and later returned proceeds as “Special Capital” to the traders.
The arrangement aimed to have GSAM pay corporation tax on the retained amounts and to make the eventual payments to individuals appear as non-taxable capital, avoiding income tax. The traders argued they only received capital, not income.
HMRC argued the deferred amounts were still income and should be taxed. It raised two legal claims:
HMRC said the partnership’s profit-sharing rules meant these amounts were effectively the individual partners’ profit shares and should be taxed in the year earned.
Alternatively, HMRC said the payments were income “not otherwise charged” and thus still taxable when actually paid.
The Supreme Court unanimously dismissed both appeals, siding with HMRC on the core points. Its reasoning, explained below, clarifies how deferred bonuses are taxed in the UK.
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Section 850 of the Income Tax (Trading and Other Income) Act 2005 requires that a partner’s share of a firm’s profits be determined “in accordance with the firm’s profit-sharing arrangements” in each accounting period. The key is legal entitlement during that period.
The court held that for s850 to apply, the partners must have a contractual right during the period to receive a specific share of profit. In this case, the “indicative allocation letters” to traders did not give any enforceable right to payment in that period. The actual payments occurred later and were at GSAM’s discretion. Therefore, the deferred amounts were not regarded as partners’ profit shares under s850.
“Profits are translated into income only to the extent a partner had a contractual right in that period to share in those profits… The amounts in the indicative allocation letters were therefore not profit shares… because the individual member had no contractual right… to receive that sum of money.”
Section 687 ITTOIA is a catch-all tax charge on income “from any source not charged under any other provision.” HMRC argued that when GSAM finally paid out the Special Capital, it was taxable income because it came from trading profits and was not covered by any other rule.
The individual members contended that GSAM’s payouts were purely voluntary (since GSAM had discretion) and so had no “source” for s687. The Supreme Court disagreed. It found that the decision-making process under the CAP was a sufficient source linking the payments to the recipients’ trading earnings. In other words, there was a clear economic connection: the payments rewarded the traders for their work. Thus, the special capital was income in their hands when paid and taxable under s687.
“The decision-making process of Mr Gerko and GSAM in implementing the CAP… is the source of the deferred income received by the individual members… The special capital received… under the CAP is therefore income charged to income tax under section 687 ITTOIA.”
The Supreme Court dismissed the traders’ tax appeal and HMRC’s cross-appeal. In practical terms, the traders (including Alex Gerko) must pay income tax on the deferred amounts just as if they had been paid in the year earned. The scheme’s structure could not convert taxable earnings into tax-free capital.
The courts looked at the real nature of the payments, not just how they were labeled. Even though the CAP branded the payments as “Special Capital,” the substance was deferred compensation for trading profits. UK tax law will tax the substance of income, not the form.
To use Section 850, a partner must have had a clear right in that accounting period to part of the profit. In this case, the partners had no contractual entitlement to the deferred sums during the relevant years, so s850 did not apply. In any profit-sharing scheme, ensure that profit rights are clearly defined and enforceable if you want them to trigger tax reliefs in real time.
The ruling confirms that postponing payment does not sidestep taxation. If the income is clearly linked to your work (through contracts, decisions, or incentives), it will be taxed under the catch-all rules like s.687 when it is received. Timing alone doesn’t eliminate tax liability.
Complex structures often attract scrutiny. Taxpayers should design arrangements in alignment with both the letter and purpose of the law. Overly aggressive schemes risk being recharacterised by HMRC and the courts.
This case followed similar lines to earlier decisions (e.g. the BlueCrest cases) about deferred partnership payments. It underlines that legal discretion given to a corporate partner (like GSAM) is still governed by implied duties (per Braganza rules) and can create taxable sources of income.
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The heart of the problem was that the profit-sharing and deferral plan tried to separate profit generation from profit receipt:
Make sure that any bonus or profit share you defer still meets legal tests if you want to claim favourable tax treatment. If you intend for a deferred arrangement to count as partnership profit, build in a firm entitlement and document it clearly. Alternatively, if you treat it as genuinely separate capital, be prepared to argue on sources – but be aware that tax authorities can still reclassify it as taxable income.
If income should have been declared but was not, HMRC may charge interest and penalties on the unpaid tax. The severity depends on factors like intent:
It’s crucial to get professional help if your tax position is challenged. An enquiry into a complex partnership scheme can be costly and time-consuming, so early resolution or disclosure is often wise.
Apex Accountants helps businesses and individuals navigate complex tax matters. We offer:
Our experts stay up-to-date with UK tax cases and legislation, ensuring advice reflects the latest legal standards.
No. The court found no double taxation. Originally, part of the profits was taxed at corporate rates in GSAM, and later the same amounts were taxed as personal income in the traders’ hands. The Supreme Court’s view is that this reflects the economic reality: the traders had not already been taxed on their entitlement, so tax was due on the later payment.
Generally, simply delaying payment won’t avoid tax if the payments are linked to your work. UK law taxes based on substance. If a scheme is genuine capital (rare), it might escape income tax. But if it effectively rewards services, it will usually be taxed, either via partnership rules or the catch-all provision.
Section 850 requires that, in the year profits are earned, each partner has a specific right to a part of them. In this case, the traders only had a hope (discretionary claim) and no legal entitlement until GSAM decided. Because of that, the partnership’s profit-sharing rules never assigned those amounts to them in that year, and so s850 did not apply.
A “source” means the activity or relationship from which income arises. The Supreme Court said the source here was the traders’ own work and the contractual framework (CAP/LLP deed). The payments were linked to the trading profits and the CAP decisions, which made them taxable income.
Make sure any deferred payments are properly accounted for tax-wise. If you want to defer legitimately, build in enforceable rights and document them. If using a corporate vehicle, get clear advice on tax timing. And always review whether HMRC might view any payments as income anyway.
The Supreme Court’s decision underscores that creative tax structures must align with the law’s substance. For high-earning individuals and partnerships, this means ensuring clear legal entitlements and transparent reporting. If you have complex profit-sharing arrangements, proactive tax planning and review are essential to avoid costly adjustments and penalties.
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