© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
De minimis principle
Unless the contrary intention appears, the law is not concerned with very small things
"[43] The de minimis principle is expressed more fully in the Latin phrase “de minimis non curat lex”, the usual English translation of which is “the law is not concerned with very small things”. Bennion on Statutory Interpretation: A Code (6th ed, 2013) at section 343 states that:
“Unless the contrary intention appears, an enactment by implication imports the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters).”
As Bennion acknowledges, the contrary intention may be ascertained from the words of the legislation or, by implication, from the purpose of the legislation." (Boxmoor Construction Limited v. HMRC [2016] UKUT 91 (TCC), Judges Sinfield and Powell)
Meaning of de minimis​
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- Something of real substance is not de minimis
"[49]...Bennion at page 990 states that “What is relatively small within the context of the matter in question will not be dismissed as de minimis if it nevertheless has some real substance.” What is de minimis in a particular case depends on the circumstances of that case and the nature of the statutory provision." (Boxmoor Construction Limited v. HMRC [2016] UKUT 91 (TCC), Judges Sinfield and Powell)
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- Consider the quality and quantity of the departure from the strict condition
"[66] It seems to us that the question of whether or not retained elements are trifling is to be judged, as Miss Shaw submits, in the context of the building as a whole, but also by reference to their significance and not only by reference to the area or volume occupied by them. 67. In the context of the building as a whole, the retention of the original marble lined grand entrance and staircase and the passage therefrom to the formal garden at the rear were 3 significant features of the building after and before the reconstruction, and even in the context of a building with 86 flats would not be regarded as trifling. On this ground we would find that the de minimis exemption did not apply." (Richmond Hill Developments (Jersey) Ltd v. HMRC [2021] UKFTT 290 (TC), Judge Hellier)
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- Applies to whether a building has been completely demolished
"[48] In our view, there is nothing in the language of Note 18(a) “Demolished completely to ground level” to indicate that the de minimis principle is excluded. To take a hypothetical example, if the entire structure of a building were removed down to ground level save for a single brick that remained above the foundations, it could not reasonably be said that the building had not been completely demolished to ground level. What remains above ground level is not a building or part of one; it is a brick. In the context of Note 18 as a whole, it is clear that the retention of a façade cannot be regarded as de minimis otherwise there would be no need for the specific exemption in Note 18(b) where such retention is a condition or requirement of the planning consent or similar permission. In our view, however, Note 18(b) does not show that something much smaller than a façade, such as a single brick, cannot be considered to be de minimis." (Boxmoor Construction Limited v. HMRC [2016] UKUT 91 (TCC), Judges Sinfield and Powell)
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Examples​
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- Applies to whether what is retained is no more than external walls
"[48]...The Note 4 requirements are more generous to listed buildings and indicative of the continuation of some of the social policy of protecting heritage albeit in weaker form. But there is the same stringency of language in what may be incorporated: “no more than”. That suggests to us that the same stringency as to what remains inside the walls (and other external features) is to be read into Note 4 and that Parliament did not intend the “external walls” to extend to things which were not walls but were structurally necessary for the retention of the walls.
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[61] If we are wrong in our conclusion that the floor slabs, the majority of the truss and the chimney stacks were not part of the external walls or other external features, the question arises as to whether the other retained features can be ignored as de minimis in determining whether Note 4 is satisfied.
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[64] It seems to us that the same reasoning applies to Group 6 and Note 4 and Mr Watkinson did not disagree. There is nothing to suggest that the retention of one internal brick should not be ignored." (Richmond Hill Developments (Jersey) Ltd v. HMRC [2021] UKFTT 290 (TC), Judge Hellier)
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- Does not apply to disregard preferential rights where legislation requires that there must not be "any"
"[39] In our view, the word “any” in section 173(2)(aa) is an indication of a contrary Parliamentary intention i.e. an intention to exclude the application of the de minimis rule.
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[44] In this case, the FTT concluded that, in the case of the “highly articulated” provisions of Part 5 ITA 2007, it was unlikely that Parliament would have intended to permit a small or insignificant preferential right to be ignored in applying section 173(2)(aa) without doing so expressly. We agree. In the context of the highly detailed provisions of Part 5 ITA 2007 and the use of the word “any” in section 173(2)(aa) it is impossible to ignore the preferential rights carried by the Ordinary Shares. To do so would, in Lord Hoffmann’s words, be to rectify the language of the statute rather than to construe it purposively." (Flix Innovations Limited v. HMRC [2016] UKUT 301 (TCC), Mann J and Judge Brannan)
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