Rory Mullan

Rory Mullan
Rory Mullan

Rory Mullan MA (Cantab), CTA

E-mail: rorymullan@15oldsquare.co.uk

Called 2000, Gray's Inn

Rory is recommended as a leading junior tax barrister in the 2015 edition of the Legal 500 (Tax: Corporate) which carries the comment that: " ‘He is phenomenally intelligent and very versatile.’"

Rory has also been selected for Tax Journal's 40 under 40 Ones to Watch in Tax for 2015 where he is praised for having "attention to detail ... yet can see the wood for the trees" and being "frighteningly intelligent and also very hard working".

Rory is co-author of The Interaction of EU Treaty Freedoms and the UK Tax Code (Key Haven Publications November 2011).

He is a member of the Revenue Bar Association, the Chancery Bar Association and the Stamp Taxes Practitioners Group. He is also qualified as a Chartered Tax Adviser and sits on the CIOT EU and Human Rights sub-committee.

TJ40under40_WinnersLogo_2015 (2)

Practice

Rory predominantly assists taxpayers in relation to UK tax matters. This can be either in relation matters of tax planning or or in relation to disputes and other dealings with HMRC. He advises on all direct tax matters (for private and corporate clients as well as in the context of trusts and estates) and has also advised extensively in VAT and stamp duty land tax planning. He has a particular interest in how EU law impacts upon UK tax legislation and has advised widely in this area.

The approach is always to try to give the most helpful, comprehensive and practical advice possible. In disputes with HMRC this will involve an objective, detailed and realistic analysis of the HMRC approach and the prospects of successfully challenging it. Often this results in a favourable conclusion at an early stage. His emphasis is always on obtaining a quick and cost effective solution.

Rory is licensed to accept instructions under the Public Access Scheme.

Recent Matters

Typical matters on which Rory has been asked to advise include the following:

● Entrepreneurs' relief and how to secure its availability.

● Residence, the taxation of foreign domiciliaries and the tax treatment of remittances.

● Accelerated Payment Notices and Follower Notices, their application and approaches to challenging them.

● The GAAR and its application, including the scope and extent of the transitional provisions.

● Compatibility of direct tax provisions with EU law, including:

(i) the transfer of assets abroad provisions,

(ii) section 13 TCGA 1992, 

(iii) sections 86 and 87 TCGA 1992,

(iv) exit charges,

(v) restrictions on hold-over relief for foreign residents,

(vi) restrictions on group relief for non-UK companies,

(vii) retrospective legislation, 

(viii) the settlement provisions and

(ix) the remittance rules.

● Drafting complaints to the European Commission.

● The application of the Transactions in Securities legislation.

● Tax efficient structuring of family business.

● Employee taxation including the scope of the benefits code, the employment related securities legislation (Part 7 ITEPA 2003)and the disguised remuneration legislation (Part 7A ITEPA 2003).

● Employee benefit trusts including the corporation tax and income tax treatment of payments into and out of EBTs and related planning, the application of the legislation on EFRBS as it relates to EBTs, the inheritance tax treatment of EBTs and payments into them, the effects of the disguised remuneration legislation and the EBT settlement opportunity.

● SDLT planning.

● Inheritance tax planning including:

(i) consideration of the charge to income tax on previously owned assets

(ii) gifts with reservation of benefit provisions, and

(iii) business and agricultural property relief, when it is available and how to secure it.

● The scope and application of Taxation Information Exchange Agreements.

● Offshore disclosure facilities.

● Challenging penalty assessments.

 

Cases

Hardy v HMRC  UT/2015/0115 (Capital Gains Tax – forfeited deposit on rescinded contract for purchase of land – whether contractual rights a chargeable asset – whether disposal – whether an allowable loss)

Wellstead v HMRC TC/2011/08164 (capital allowances – ss286-296 Capital Allowances Act 2001 – purchase of building sold unused by a developer – developer holding headlease – sale completed by means of a long sub-lease and not an assignment of headlease – whether sale of relevant interest – appeal allowed)

Townend v HMRC [2016] UKFTT 276 (TC) (Penalty assessment (s 95 Taxes Management Act 1970) – Relevance of Offshore Disclosure Facility – Calculation of tax difference – Appropriate levels of abatement for disclosure, co-operation and seriousness – Appeal dismissed)

HMRC v Apollo Fuels Ltd  & others [2016] EWCA Civ 157 (Contending a charge to income tax arising under Chapter 6 only if the terms on which a car is leased to an employee confer a benefit on the employee in the ordinary sense of that word)

Larsen v Comptroller of Taxes and States of Jersey [2015] JRC 244 (Judicial review challenging the validity of the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 and of information notices issued by the Jersey Comptroller of Taxes without prior opportunity to make meaningful representations)

R (oao Hely Hutchinson) v HMRC [2015] EWHC 3261 (Admin) (Successful judicial review HMRC's reversal of 2003 guidance issued in relation to Mansworth v Jelley claims concerning employment related share options)

Butt v HMRC TC/2010/06495 [2015] UKFTT 0510 (TC) (MTIC fraud - s.61 VATA penalties by reference to disallowed input tax - prohibition on retrospective penalisation - Article 7 ECHR and Article 49 EU Charter of Fundamental Rights - conforming interpretation and criminal liability);

Temple v The Office of Comptroller of Taxes [2014] JRC 244 (Judicial review of the prohibition on the executor of a Jersey estate from informing the international executor and other interested parties of a notice issued under the Taxation (Exchange of Information with Third Countries)(Jersey) Regulations 2008).

Fisher v HMRC [2014] UKFTT 804 (TC) (Transfer of assets abroad: tax avoidance; motive defence; quasi transferors; incompatibility with EU law - Status of Gibraltar under EU law – discovery assessments);

Isocom Ltd and Tahmosybayat v HMRC  [2014] UKFTT 571 (TC) (Effect of employee fraud on time limit for PAYE determinations - pooled cars – conditions for a discovery);

Apollo Fuels Ltd and others v HMRC [2014] UKUT 0095 (TCC) (TC)(Employee car leasing arrangements - the benefits code does not apply where there is an arms length rental and whether business mileage allowances can be claimed);

APEF Management Company 5 Limited v Comptroller of Taxes [2013] JRC 239 (Scope of application of the Jersey/France Taxation Information Exchange Agreement - requirement of foreseeable relevance - inadequacy of informaiton provided by requesting state);

Volaw Trust & Corporate Services Limited and Larsen v Comptroller for Taxes [2013] JCA 262 (Scope of application of the Jersey/Norway Taxation Information Exchange Agreement - Jersey regulations for implementing TIEAs - application of Article 8 ECHR to procedure for information requests);

Fisher v Revenue and Customs Comrs [2012] UKFTT 335 (11 May 2012) (Disclosure of documents: what documents held by HMRC are relevant to the transfer of assets abroad motive defence - Waiver of legal privilege);

Revenue and Customs Comrs v PA Holdings Ltd [2011] EWCA Civ 1414 (Treatment of dividends paid to employee shareholders in respect of restricted shares for income tax and NIC purposes);

Commissioners of Revenue and Customs v Loyalty Management UK Ltd [2007] EWCA Civ 938 (CA), [2008] STC 59 (VAT consequences of the Nectar Card scheme);

Greenalls Management Ltd v. Commissioners of Customs and Excise [2005] UKHL 34, [2005] 1 WLR 1754 (HL) (liability to excise duty of innocent warehousekeeper on diversion of goods); and

Howell v Trippier [2004] EWCA Civ 885 [2004] STC 1245 (CA) (income tax liability of trustees of a discretionary settlement in receipt of stock dividends).

Articles

Examining HMRCs refusal to allow capital allowancesLexisNexis, August 2016 I have a tax dream Tax Adviser Magazine, December 2015 (relationship between human rights law and tax)

Dire Straits Taxation Magazine, February 2015 (a discussion of the possibility of challenging accelerated payment notices (APNs) by reason of hardship)

Rapid Conformity Tax Adviser Magazine, June 2014 (A consideration of the impact of interpretations conforming to EU law on the application of tax legislation) 

Capital Gains Tax and Offshore Trusts: Are sections 86 and 87 TCGA 1992 compliant with EU law? (2013) Tax Planning Review, forthcoming (an analysis of the extent to which section 86 and 87 TCGA 1992 are breach of EU law, regard being had to the relevant provisions of the TFEU and the case law of the CJEU)

Offshore Tax Planning Issues (2013) Tax Planning Review, Volume 1, 93 (a discussion of topical offshore tax planning issues, including EU infringement proceedings against the UK in relaiton to section 720 ITA 2007 (transfer of assets abroad) and section 13 TCGA 1992 (attribution of gains of offshore companies), the UK's response and time limits for taxpayers considering claims for repayment of tax paid under those provisions)

Meilicke v Finzmt Bonn-Innenstadt: practical issues in claiming foreign tax credits (2012) BTR, Issue 1, 49 (a discussion of the decision of the CJEU concerning how effect was to be given to its earlier decision in Manninen on the requirement that EU Member States give dividend tax credits for foreign tax suffered where such a credit would be given for national taxes)

Test Claimants in the Thin Cap Group Litigation v HMRC: what amounts to commercial justification in considering issues of proportionality? (2011) BTR, Issue 3, 295 (a discussion of the decision of the Court of Appeal concerning the application of EU law to the thin cap legislation and the effect of the requirement that justifiable restrictions on freedom of establishment should be proportionate)

The Relevance of EU Law to the Motive Defence (2011) OITR, Issue 15 (a discussion of whether the exercise of a freedom of movement under the TFEU can properly be characterised as tax avoidance for the purposes of the motive defence)

Littlewoods Ltd and others v HMRC: compound interest overpaid VAT - where are we now? (2010) BTR, Issue 5, 475, with Harriet Brown (a discussion of the various cases dealing with the issue of compound interest on overpaid VAT up to and including Littlewoods and the terms of the reference made to the ECJ in that case)

Sections 52 and 53 of the Finance Act 2010: Inheritance Tax anti-avoidance provisions (2010) BTR, Issue 5, 451 (a brief overview of the inheritance tax anti-avoidance provisions introduced in FA 2010, including the new section 81A IHTA 1984 and the amendments concerning purchased interests in possession)

Compound interest claims: what to do now Tax Journal, 27 September 2010

Brits get a raw deal Taxation, 2 September 2010 (A brief discussion concerning the incompatibility of some aspects of HMRC 6 on residence with EU law)

A series of unfortunate misconceptions Taxation, 24 June 2010 (A discussion of the errors in HMRC's approach to the inheritance tax implications of payments to an EBT)

Managed Service Companies (2008) PTPR Vol 12, Issue 1, 57 (A discussion of the scope and effect of the managed service companies legislation)

What to do with Trusts created before 22 March 2006 (2008) PTPR Vol 12, Issue 1, 35 (a discussion of the consequences of the changes to the inheritance treatment of trusts, how they effect existing trusts planning to deal with the changes)

Variations of Trusts (2007) PTPR Vol 11, Issue 2, 15 (A discussion of the different approaches and means of altering the terms of an existng trust)

Private residence relief - section 112 and Schedule 22 Finance Act 2004 (2004) BTR 508 (a brief overview of the changes to principal private residence relief introduced by FA 2004)

R v Dimsey and Allen (2002) BTR 149 (a discussion of the decisions of the House of Lords concerning the transfer of assets abroad provisions and the shadow director charge)

Books

The Interaction of EU Treaty Freedoms and the UK Tax Code with Harriet Brown, (Key Haven Publications 2011)

Author of chapter on Capital Gains Tax in Tolley's Property Taxation

Contributor to Finance Act Handbook 2015 (Enforcement by deduction from accounts; APNs and group relief)

Lectures

Rory lectures extensively on tax matters. Recent lectures have included the following topics:

The charge to ATED: an overview of the scope of the charge and the relevant exemptions.

EU law and foreign domiciliaries: a discussion of some of the EU law issues which arise in the context of the taxation of foreign domiciliaries.

Tax for general practitioners: an overview of topical tax developments in 2014/15.

Recent tax avoidance cases: a look at the approach and attitude of the Courts in recent cases involving tax avoidance.

Residence and Domicile: a discussion of the rules relating to residence and domicile including recent developments.

Stamp duty land tax update: a discussion of the latest developments in SDLT including FA 2015 changes and the decision in Project Blue.

International Corporate Tax: a discussion of of some of the key issues in international corporate tax including EU developments and BEPS.

Entrepreneurs Relief after FA 2015: a discussion of some of the latest changes to entrepreneurs relief and some of the common issues which can arise in securing relief;

Business and agricultural property relief: a discussion of some of the most significant issues concerning claims for APR and BPR.

Disposals of assets through partnerships: a discussion of the tax treatment of disposals of assets owned through a partnership.

Human Rights issues relating to Accelerated Payment Notices and Follower Notices: a discussion of the available approaches to challenging FBs and APNs, the grounds upon which such a challenge might be based and some of the human rights issues which arise.

Fisher v HMRC - EU law issues: a discussion of the EU law issues which arose in relation to the transfer of assets abroad code.

Tax Complaints to the European Commission: a discussion on Article 258 TFEU and the use of the procedure to complain to the European Commission as an alternative means of dealing with HMRC intransigence in matters involving EU law.

EU law overriding UK direct tax law: a discussion of some areas where UK tax law appears to be incompatible with EU law, including exit charges; restrictions on reliefs on transfers to non-residents; the remittance basis; the charge on trustees under section 86 TCGA 1992; the charge on beneficiaries under section 87 TCGA 1992; retrospective tax charges; section 13 TCGA 1992; section 18 IHTA 1984 (the spouse exemption); and the transfer of assets abroad provisions.

Incorporating the Family Business: a discussion of the advantagesof incorporation and the tax issues to be aware of;

The General Anti Abuse Rule and other developments in anti-avoidance: a discussion of the scope of the GAAR and some of the practical aspects of its application;