Philip Simpson, Q.C., of Old Square Tax Chambers, successfully represented the Advocate General in a Supreme Court challenge by the Scotch Whisky Association (SWA) to the Scottish Government’s Alcohol (Minimum Pricing) (Scotland) Act 2012. The appellants presented a petition for judicial review challenging the lawfulness of the Act and arguing that minimum unit pricing was disproportionate under EU law, breached world trade law, and breached the Treaty and Act of Union by which England and Scotland united in 1707. The factual basis of the challenge was, in summary, that the same effect could be achieved by increasing excise duties, whether alone or in combination with other measures.
By the time the case reached the Supreme Court, the issues had narrowed to those arising under European law. Seven judges sat to hear the appeal. While not seeking any particular disposal of the appeal, the Advocate General made a number of submissions as to the law, all of which were accepted. Overall, the Supreme Court found that the 2012 Act does not breach EU law and that minimum pricing is a proportionate means of achieving a legitimate aim. Scottish Ministers are now expected to make Scotland the first country in the world to establish a minimum price per unit of alcohol, possibly early next year.
Philip said: ‘This is an important decision in that it confirms that where a national legislative measure is challenged on the basis that it breaches a fundamental freedom of EU law, a court deciding the question of proportionality must ask whether it was reasonable for the national legislature to conclude that (i) the measure being challenged was suitable to achieve the end pursued, and (ii) there was no less restrictive measure available.
Important in the present case were the uncertainty of how manufacturers, wholesalers and retailers would react to the provision, the requirement for its effects to be assessed after five years, and the fact that, following that assessment, the provision would automatically terminate after six years unless renewed by the Scottish Parliament within that time.’
A copy of the Judgment can be seen here.
Etienne Wong has recently had the following articles published:<br>
Doing Business Post-Brexit: Tax (including VAT). – [This is a chapter from the book Doing Business After Brexit: A Practical Guide To The Legal Changes (https://www.bloomsburyprofessional.com/uk/doing-business-after-brexit-9781784519360/) © Bloomsbury Professional 2017, and is reproduced with the kind permission of the publishers. All rights reserved]
VAT: from VADR to DOTAS. – [This article was first published in the 22 September 2017 issue of the Tax Journal, and is reproduced with the kind permission of the publishers. All rights reserved]
Do Old Buildings Die? Astral Construction and J3 Building Solutions. – [Reproduced with permission from Tax Planning International Indirect Taxes, 15 IDTX, 11/30/17. Copyright © 2017 by The Bureau of National Affairs, Inc. (800-372-1033) www.bna.com]
The notes from the Old Square Tax Chambers Seminar re Case Law Developments in Tax, held on 9 November 2017, are now available below:
Amanda Hardy QC – Recent Supreme Court tax decisions
Mary Ashley – Recent cases on EU law and private tax
Rory Mullan – Recent cases on public law challenges to HMRC
R(Jimenez) v FTT & HMRC – High Court holds that HMRC’s information powers do not have an extra-territorial reach
Rory Mullan successfully represented the taxpayer in R(Jimenez) v FTT & HMRC, a judicial review concerning the legality of an information notice issued to him in Dubai.
Charles J held that the FTT was wrong to conclude that an information notice could be issued extra-territorially. Although Schedule 36 FA 2008 was silent on the matter, the relevant principles of public international law meant that it should not be construed to have such an effect.
The CJEU has given its preliminary ruling in Case C-192/16 Fisher v HMRC in which Rory Mullan and Harriet Brown acted for the taxpayers and Oliver Marre for HM Government of Gibraltar.
The CJEU followed an earlier decision of June this year and heled that the exercise of freedom of establishment or free movement of capital by British nationals between the UK and Gibraltar constitutes, as a matter of EU law, a situation confined in all respects within a single Member State.
Importantly, the CJEU confirmed that the scope of this rule was limited to British nationals and that even in the situation involving British nationals, reliance on EU law is possible where there is sufficient foreign element. That factual question, however, has been left for the Upper Tribunal to decide.
Rory Mullan acted for the taxpayer before the Court of Appeal Routier v HMRC. This was a highly significant case which concerned the EU law implications of a restriction on IHT relief for a gift to a Jersey Charity.
The Court of Appeal has confirmed that a restriction on charitable reliefs to UK charities was an unlawful restriction on the right to free movement of capital, but has held that it is lawful for the UK to restrict relief to those charities based in a jurisdiction where there are suitable mechanisms for exchange of tax information.
Importantly, the Court decided in favour of the taxpayer that the provisions on free movement of capital apply as between the UK and Jersey. This aspect of the decision will have significant consequences beyond the facts of this case. It confirms that EU law defences are available to Jersey trusts and other entities, a point which HMRC has long disputed.
Old Square Tax Chambers are delighted once again to have been listed as a leading set for both private client and corporate tax work in the Legal 500 (2017).
The directory says: “With expertise in private and corporate tax, Old Square Tax Chambers has ‘strength in depth’ and barristers who are ‘a pleasure to deal with’ and ‘very responsive, even when on holiday’. Senior clerk Tony Hall is ‘a force to be reckoned with’, and his team is ‘friendly and easy to deal with’. Franco Lombardi and Adam Blades complete the clerks’ room.”
We have been recognised as “among the pre-eminent sets at the tax Bar for especially high-value tax disputes”.
Robert Venables QC, James Kessler QC, Amanda Hardy QC and Philip Simpson QC are individually ranked as Leading Silks and Rory Mullan, Etienne Wong, Harriet Brown and Oliver Marre as Leading Juniors.
Further details are available here.
Taxation of Directors and Employees Post the Supreme Court Decision in RFC 2012 Plc (“Rangers”) and the 2017 Finance Acts
An Afternoon Seminar at The Law Society’s Hall, London WC2A
Wednesday October 18th 2017
Chairman: Robert Venables Q.C.
Speakers: Robert Venables Q.C., Harriet Brown and Setu Kamal.
All the speakers are members of Old Square Tax Chambers, Lincoln’s Inn, WC2A 3UE, 020 7242 2744, email@example.com.
Fees £450 + VAT (£90), total £540.
Early Bird price for bookings made before September 11th £400 + VAT (£80), total £480.
In RFC 2012 Plc v Advocate General for Scotland, the Supreme Court has held that everyone (including, until 2015, HMRC itself and its predecessors) had completely misconstrued the income tax acts, since the imposition of modern income tax in 1842, and by “purposive construction” has purported to impose unjust charges to tax on directors and employees.
Many appear to have misunderstood the precise effect of the decision and consider it to have a wider impact than it does, even if correct and binding precedent.
The seminar will consider the precise scope of the decision and in which situations it will, even if binding precedent, and will not apply.
The seminar will also consider the profound changes made to the “Disguised Remuneration” rules made by Finance Act 2017 and the future changes proposed to be included in Finance Act No 2 2017 (as per the draft clauses published on July 13th with any amendments made in the passage of the autumn Finance Bill).
The seminar will further consider the current benefit in kind rules in the light of Finance Act 2017 changes.
14.00 Chairman’s Introduction followed by:
The Rangers Decision – Robert Venables Q.C.
What does the case decide? Is it internally consistent? Is it binding Precedent – It is compatible with other House of Lords and Supreme Court authorities? Even if binding, in what limited situations will the decision apply?
14.45 Benefits in Kind Post Finance Act 2017 – Harriet Brown
The Earnings Charge – ITEPA Part 3 BIK Charges Post Finance Act 2017 especially Employment-Related Loans (Chapter 7) and General Charge (Chapter 10) – BIK Charges Under ITEPA Part 7A (Disguised Remuneration)
15.25 Finance Act 2017 Changes to Disguised Remuneration – Robert Venables Q.C.
The additional heads of charge – New Perceived Anti-Avoidance Rules
16.05 Discussion Session with Refreshments
16.20 Finance (No 2) Act 2017 Retrospective Charge on April 5th 2019 – Setu Kamal
17.00 Panel Session and Questions to Speakers
17.30 Close of Seminar
Old Square Tax Chambers are hosting an afternoon seminar on 9 November 2017 where Amanda Hardy Q.C. Rory Mullan and Mary Ashley will be speaking on Case Law Developments in Tax.
The seminar is to be held from 4.00 pm to 6.15 pm in The Old Hall, Lincoln’s Inn and the timetable will be as follows:
4.00 – 4.15 Tea & Coffee
4.15 – 4.50 Amanda Hardy Q.C. will speak on Recent Supreme Court tax decisions and will address RPL 2012 Plc, the hearing (and judgment if handed down) in De Silva and its implications in the context of APN challenges
4.50 – 5.25 Mary Ashley will speak on Recent cases on EU law and private tax and will address Panayi, Routierand Fisher and their wider significance in the private tax sphere
5.25 – 6.00 Rory Mullan will speak on Recent cases on public law challenges to HMRC and will address Hely Hutchinson and the current state of legitimate expectations as well as other recent public law challenges to HMRC powers
6.00 – 6.15 Question to the speakers followed by drinks
Drinks will be hosted immediately after the seminar at which you will have an opportunity to meet members of Old Square Tax Chambers.
The seminar is free of charge.
Please let us know if you wish to attend by emailing firstname.lastname@example.org and do feel free to inform any colleagues who might be interested in joining us.
Amanda Hardy QC and Oliver Marre will be speaking at SGCL’s family law seminar on 18 October 2017. Following advice and appearances in a number of divorce proceedings recently, including one which has been reported as the UK’s highest value contested divorce, Amanda and Oliver will address tax issues arising in divorce proceedings and related matters.
The event will be held in Central London between 4:00pm and 6:30pm, further details can be found here.
[Posted: 04 August 2017]