FAQ
1. Why Instruct Counsel?
Independent Advice
This involves advising either as to how particular transactions can be structured and implemented in the safest and most tax efficient manner, or as to more general, longer term tax planning for individuals, companies and trusts. We advise on United Kingdom, European and International tax matters. We also often advise as to remedial action in cases where problems have arisen and, where necessary, we advise on the conduct of negotiations and litigation with the Her Majesty's Revenue and Customs..
A Second Opinion
We are often consulted on a second opinion basis by professional advisers who do not have any real doubt as to the answer to a problem. Sometimes this is done in a particularly difficult or important matter on a "safety first" basis. On other occasions, the professional adviser has himself or herself found a solution to a problem which he /she considers to be satisfactory, but he/she finds it useful for a barrister to approach it afresh with a view to detecting any flaws or possibly suggesting improvements or an alternative approach.
As we do not have a continuing relationship with the lay client, we are able to take a detached view; we do not need to feel embarrassed in giving frank, if unpalatable advice, and the client is usually more prepared to accept such advice from a barrister than he is from his own solicitor or accountant. Where differences of opinion arise between professional advisers of the lay client, it is often useful to call in a barrister to "arbitrate".
Drafting
We frequently draft or settle documents such as contracts, trust deeds and company documentation. In this way we are able to assist throughout a transaction to final implementation. We consider it to be an important dimension of our practice. It is all too easy for defective drafting of documents to lead to difficulties, often because the drafter has paid insufficient attention to the aspects of the general law which impinge on the transaction, or because the drafting is done by somebody who has not been involved in the tax analysis and so has not fully understood what the documents are intended to achieve.
Litigation
In addition, in any case where litigation may result, the services of a barrister as an advocate are indispensable, whether it be a friendly application to vary the trusts of a settlement or a contested tax appeal.
Even where others have rights of audience, as before the First Tier or Upper Tier Tribunals, it is much wiser for a barrister to be instructed to appear, as it is often impossible to correct on appeal mistakes made at first instance. The assembly and presentation of the evidence at the initial stage is crucial, because the findings of the first instance tribunal on matters of fact can very rarely be successfully challenged. Indeed, establishing the essential facts may well require as much skill as arguing a point of law, even in the higher courts.
Even solicitors who are tax specialists often prefer to bring in a barrister for advocacy work. By reason of their general experience of litigation, barristers are also in the best position to advise realistically on the chances of success before a contentious matter goes to trial.
We are highly experienced in representation before the First Tier and Upper Tier Tribunals and the High Court, Court of Appeal, Privy Council, Supreme Court and European Court of Justice. We consider that important qualifications for presenting a case in a tax dispute include not only a thorough knowledge of the relevant tax law but also familiarity with the practice and procedure of the tribunal and with the law of evidence; we are well equipped in these particulars.
2. How to Instruct Us?
It is not necessary to prepare instructions in any particular form, although a summary of the facts and the questions to be considered, with the necessary supporting documentation, is always helpful.
In appropriate cases we can take instructions over the telephone and respond initially in the same way.
RBA Joint Advisory and Special Advocacy Schemes
Junior members of Tax Chambers, 15 Old Square can be instructed under the Special Advocacy Scheme and the Joint Advisory Scheme established by the Revenue Bar Association.
These schemes offer low-cost, fixed-fee access to barristers. The Special Advocacy Scheme is designed for simple tax litigation cases and the Joint Advisory Scheme is for taking advice from counsel on straightforward matters.
Who can make use of the RBA schemes?
The schemes are open to members of the following professional bodies:
- The Chartered Institute of Taxation
- Institute of Chartered Accountants for England and Wales
- The Chartered Association of Certified Accountants
Fees
The fees charged under the schemes, which will in many cases be cheaper than instructing counsel outside the scheme, are as follows:
The Special Advocacy Scheme This scheme is for members of the participating professional bodies who wish to secure the services of counsel for representation in straightforward cases at Tribunal hearings. Cases most suitable for representation under this Scheme are:
- penalty cases under the Taxes Management Act;
- small back duty cases;
- cases which involve a short legal (or possibly technical) point where little tax is at stake;
- appeals against notices to produce documents;
- applications for direction to complete enquiries;
- surcharge and serious misdeclaration cases at the VAT Tribunal.
The Joint Advisory Scheme The scheme is best suited to:
- discussion of relatively short points;
- where problems can be explained over the telephone;
- where an indication is sought as to whether the point is of sufficient interest to justify further consideration.
If, after initial discussion, you wish to involve counsel, full instructions can be provided in the normal way. The members of Tax Chambers, 15 Old Square who participate in both schemes are:
Rory Mullan
Setu Kamal
Harriet Brown
Oliver Marre
To make an enquiry please contact the Clerks by email or telephone.
Further information from the Revenue Bar Association can be found on its website.3. How is Advice Given?
Advice is given by written opinion, in conference and over the telephone. Tax problems are usually best handled by discussion in conference, so that it can be ensured that the client understands both the advantages and disadvantages of the various possible course of action, and the level of any risks involved can be explained. We also consider that the client is likely to have more confidence in the advice given to him if he has met the person giving it, and has had the opportunity to air any concerns he may have. Generally, we are willing to attend meetings or to hold conferences at the client's premises.
4. Who can instruct us?
Persons who may instruct us are as follows:
Professional clients
We are permitted to be instructed by professional clients which includes each of the following:
- a solicitor, solicitors' firm, LLP or company and any other body authorised to provide legal services and regulated by the Solicitors Regulation Authority, an authorised litigator, Parliamentary agent, patent agent, European Patent Attorney, trade mark agent, Notary or a European lawyer registered with the Law Society of England and Wales;
- a licensed conveyancer;
- an employed barrister or registered European lawyer;
- a practising barrister or registered European lawyer acting on his own behalf;
- a foreign lawyer in a matter which does not involve the barrister supplying advocacy services;
- a Scottish or Northern Irish Solicitor;
- the representative of any body (such as a Legal Advice Centre or Pro Bono or Free Representation Unit) which arranges for the supply of legal services to the public without a fee, and which is designated by the Bar Standards Board.
Licensed access clients
It is also possible to be licensed by the Bar Standards Board to instruct us, and many of those who instruct us do so by reason of being automatically licensed as a result of being a member of a recognised professional body instructing us in an area which falls generally within the professional expertise of that body.
Professional bodies which represent accountants and taxation advisers and the members of which are automatically recognised as being entitled to instruct us under the licensed access rules include the following:
- The Association of Authorised Public Accountants;
- Association of Taxation Technicians;
- The Association of Chartered Certified Accountants;
- The Chartered Institute of Management Accountants;
- Institute of Chartered Accountants;
- The Institute of Chartered Accountants in Ireland;
- Institute of Chartered Accountants in Scotland;
- The Chartered Institute of Taxation;
- The Institute of Financial Accountants;
- The Institute of Indirect Taxation;
A list of other professional bodies with rights of instruction covering insolvency practitioners; architects surveyors and town planners; engineers; valuers; actuaries; chartered secretaries and administrators and insurers can be found here.
Public access
Some members of Tax Chambers can take instructions direct from a lay client under the public access rules. However, since we cannot enter into correspondence directly on a client’s behalf it will often be sensible for a layman to involve his advisers at an early stage, since if our advice involves taking any particular steps, it will be the accountant or solicitor who puts them into action, and who in due course completes tax returns, etc.
For this purpose we will give recommendations if desired.