Our clerks Cliff Holland and Franco Lombardi will be happy to discuss instructing members of Chambers or to provide any further necessary information.
1. Why Instruct Counsel?
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..
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 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”.
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.
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 Tribunals and the High Court, Court of Session, 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.
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.
Junior members of Old Square Old Square Tax Chambers 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 these 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
What fees are associated with these schemes?
The fees charged under the schemes, which will in many cases be cheaper than instructing counsel outside the scheme, are as follows:
- For a case to be prepared and presented to a Tribunal under the Special Advocacy Scheme: £950 (+ VAT)
- For the discussion of a point of tax law under the Joint Advisory Scheme: £100 per hour with a minimum charge of £75 (+ VAT).
What is 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.
What is 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 Chambers who participate in both schemes are:
- Rory Mullan
- Setu Kamal
- Harriet Brown
- Patrick Boch
- Mary Ashley
- Jon-Selous Borlace
Further information from the Revenue Bar Association can be found on its website.
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.
Persons who may instruct us are as follows:
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.
5. Do you accept instruction under the public access scheme?
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.
6. Do you accept instruction on a conditional fee basis?
One means by which a taxpayer can sometimes reduce his costs is by instructing Counsel on a conditional fee basis. Under a conditional fee agreement the parties can agree that fees (or a proportion of them) will only be payable on a successful outcome, although generally with an uplift on the normal fee to reflect risks. (This is different from what is sometimes referred to as a contingent fee agreement where the fee may be related to the tax at stake – tax barristers are not permitted to enter into such agreements). The costs of a conditional fee agreement including the uplift can at present (where an appropriate costs jurisdiction applies) be recovered from the other side.
Such an arrangement can be particularly important where the potential costs might very well outstrip the tax at stake. Some of the barristers at Old Square Tax Chambers will be happy to take certain cases on a conditional fee basis. Cases will be considered on an individual basis with regard being had to the issues involved.
If you wish to instruct a tax barrister to act in your appeal on a conditional fee basis, our clerk, Cliff Holland will be happy to discuss it further with you.
As barristers practising at the Revenue Bar we have extensive experience in dealing with a wide range of tax issues. We provide expertise in a range of services which extends far beyond the traditionally perceived role of the barrister as an advocate.
We are in a position to provide advice and expertise in each of the following ways:
We give independent advice by written opinion, conference or telephone conference.
Two areas where we are often asked to advise are (i) tax planning, where we aim to be innovative while avoiding expensive and time-consuming disputes with the HMRC; and (ii) handling contested disputes with HMRC, where we strive to achieve an acceptable result short of litigation.
We draft key documents for a wide range of transactions. These include, contracts and trust documentation and wills.
Our expertise can be invaluable particularly in ensuring that transactions with no tax objective do not have disadvantageous and unintended tax consequences.
We also draft correspondence on behalf of clients to enable them to set out their position in the manner best suited to achieving a speedy and satisfactory resolution. Professional rules prevent us from entering into direct correspondence on our clients` behalf.
Members of chambers act as advocates before all courts and tribunals in the UK and in Jersey.
Our expertise can be invaluable in dealing with arguments in an increasingly complex area of law where courts and tribunals are often hostile to the taxpayer. By ensuring that the facts features and legal complexities of your case are fully and persuasively presented, we can help you achieve a successful result.
Barristers at Old Square Tax Chambers have significant expertise in dealing with enquiries into a taxpayer’s affairs by HMRC. We appreciate that enquiries into your tax affairs can be time consuming, stressful and costly. As such our aim is to bring the matter to a satisfactory conclusion as quickly as possible. In the following we set out the various steps to be taken by a taxpayer seeking to challenge an assessment (or amendment to a self-assessment return) by HMRC and explain how we can help you obtain the best possible result.
HMRC are under a duty to collect taxes. While they will very often correctly assess the amounts of tax due it is unfortunately the case that they will not always do so. They may incorrectly apply statues or overlook relevant provisions or case law. While this may be readily detectable in some cases, that will not always be the case given the enormous and increasing complexity of UK tax law. As such, where there is some doubt as to whether a taxpayer has been correctly assessed to tax, it is almost always worthwhile as a first step to obtain the advice of an expert in UK tax law to determine the merits of the taxpayers case.
Barristers at Old Square Tax Chambers have significant expertise in researching and advising on disputes with HMRC and will be in a position to give you an unbiased and fully researched opinion as to the merits of HMRC’s position. This can be provided in conference or in writing. UK tax law is an enormously complex and expanding area with underlying case law expanding the meaning of many statutory provisions. As such, our expertise is very often invaluable at this point. Our experience is that we are able in a great number of cases to highlight and develop arguments which either or both of the parties have not considered, enabling us to help bring the matter to an early and successful conclusion. We cannot promise this in every case but we can promise that we will always provide a thorough and realistic appraisal of your prospects of successfully appealing any Revenue decision. This will enable you to be as fully informed as possible at as early a stage as possible.
Putting arguments to HMRC
Following the initial advice you will be in a position to put fully researched and carefully constructed arguments to HMRC in support of its position. As tax barristers we will be in a position to draft correspondence for you with HMRC, but are currently prevented by professional rules from entering into direct correspondence.
The vast majority of disputes which are dealt with by the barristers in Old Square Tax Chambers are successfully resolved at this point. For this reason, when faced with an enquiry into your tax affairs we suggest that you should obtain advice at as early a point as possible.
Appealing a decision of HMRC
In the event that you have been unable to persuade HMRC as to the correctness of your position HMRC will generally issue a closure notice giving their formal decision on the matter. (HMRC decisions and assessments can be made under various statutory mechanisms but at the time of a closure notice is most common). At this point, you as taxpayer can either decide to accept the conclusions of HMRC or decide to appeal them. (HMRC will generally make clear in any decision letter that you have a right to appeal and explain how the appeal can be made.) We will be able to help you in making this decision by providing an appraisal of the merits of any appeal, the risks involved and the likely costs.
Notice of appeal
If you decide to appeal, that must be done by notice in writing. The notice must be given to HMRC within 30 days. Furthermore, the First-tier Tribunal have recently held that is not enough to merely say that you wish to appeal a conclusion of HMRC, for a notice of appeal to be valid you must also set out the grounds upon which you wish to appeal the decision.
As tax barristers are experienced in drafting notices of appeal and formulating grounds of appeal as well as advising on the suitability of making an appeal.
Time limits for tax appeals
Although 30 days is a short period in which to make a decision as to whether to proceed with an appeal, the arguments of the parties will hopefully have been fully aired during any enquiry preceding the issue of the closure notice. In these circumstances the decision whether to appeal and the grounds of any such appeal will hopefully be clear so that the 30 day time limit causes no particular hardship.
Unfortunately, however, that is not always the case. If you are unsure it will often be better to preserve your rights by making an appeal which can be later withdrawn or amended as appropriate. Barristers at Old Square Tax Chambers will be able to assist in urgent cases as necessary.
In the event that you are unable to meet the 30 day time limit, there is statutory provision for a later notice of appeal to be given where HMRC consent or with the consent of the Tribunal. Once again, barristers at Old Square Tax Chambers can provide advice on this issue as necessary.
Payment of tax pending outcome of appeal
Notwithstanding any appeal, you will have to pay any tax which has been assessed unless you can get payment of that tax postponed. In direct tax cases, the tax assessed will be postponed provided that the taxpayer can show reasonable grounds for believing that he has been overcharged. This will generally not be a problem as long as you can show a bone fide dispute and generally HMRC will agree to this. If, however, HMRC do not agree to postpone tax, the question can be referred to the Tribunal. We will be able to assist and advise you if HMRC are seeking payment of tax before the appeal.
In indirect tax cases, the taxpayer must show that a requirement that he should pay the tax due before the outcome of the appeal would cause hardship. If HMRC do not agree to postpone tax, the question can be referred to the Tribunal, although there is no further appeal from the decision of the Tribunal.
On any further appeal, there is no provision for postponement of payment of tax, so that tax is paid (or not paid) in accordance with the decision appealed against.
Occasionally HMRC may threaten bankruptcy or liquidation if tax is not paid, even if the matter is under appeal to the Tribunal. The Courts have held that a bankruptcy petition by HMRC in these circumstances will not succeed if the taxpayer can show a bone fide dispute on substantial grounds. Barristers at Old Square Tax Chambers will be able to assist in resisting any such petition by HMRC if you find yourself in this position.
You, as taxpayer have the right to require HMRC to review its decision before the matter is heard by the Tribunal. Alternatively HMRC may offer to review the matter. A review may uphold, vary or cancel a previous decision of HMRC.
You, as taxpayer may pre-empt a review by referring the appeal to the Tribunal immediately. We can advise you on the merits of asking for a review of your case.
Where you require a review, then HMRC must provide its initial view of the matter within 30 days or such longer period as is reasonable. There is then a further 45 days (or such other period as is agreed) for HMRC to notify you of (i) the conclusions of its review and (ii) the reasoning behind those conclusions.
Where HMRC offer a review, you must take care to respond to that offer of review promptly if you do not wish to compromise your rights. Where HMRC set out their initial view and offer a review, then unless you take certain steps you will be treated as accepting the view set forth by HMRC and be bound by it, notwithstanding the appeal.
The taxpayer may accept the conclusions of a review. If you do not, you have 30 days after the conclusions of the review are given in which to refer the appeal to the Tribunal for it to decide the matter (this is termed in the relevant legislation as notifying the Tribunal). If you do not notify the Tribunal of the appeal within the 30 day period, then you can only do so with the permission of the Tribunal.
The majority of tax appeals are to be heard in the first instance by the Tax Chamber of the First-tier Tribunal with a right of appeal with permission to the Tax and Chancery Chamber of the Upper Tribunal (although exceptionally appeals can be heard by the Upper Tribunal in the first instance).
The Tribunal will only begin to deal with an appeal once it has been notified of that appeal. As noted, the review procedure places the onus of notifying an appeal on the taxpayer, particularly in circumstances where HMRC offer a review. An appeal is notified to the Tribunal by sending a notice of appeal to the Tribunal, which notice must contain the name and address of the appellant (normally you, the taxpayer) and the appellant’s representative as well as an address for documents to be sent. The notice must also give details of the decision being appealed, the result the appellant wishes and grounds of appeal. A copy of any written record of HMRC’s decision must also be included. As tax barristers we will be able to assist in the drafting of any notice of appeal and, more importantly, the grounds of appeal.
The standard form notice of appeal and accompanying guidance issued by the Tribunal can be found here.
Once the Tribunal has received the notice of appeal, it will allocate the appeal to one of four tracks depending upon the complexity and value of the dispute. Click here for further guidance.
The four tracks are as follows:
- (i) Default Paper cases will generally be dealt without a hearing. These cases are likely to involve appeals against fixed penalties.
- (ii) Basic cases will be dealt with by a hearing but on a more informal basis. These will include appeals against other penalties, including appeals for a reduction of penalties on grounds of reasonable excuse, applications for permission to appeal out of time and for postponement of tax.
- (iii) Standard cases will cover most other matters and will be dealt with on a more formal basis and with an exchange of evidence before the hearing;
- (iv) Complex cases will also be dealt with on a formal basis. These will be cases which require a lengthy hearing, have lengthy or complex evidence, involve a complex or an important principle or issue or involve a large sum of money.There is provision for these cases to be heard by the Upper Tribunal in the first instance.
The track which your case is allocated to is likely to have procedural and costs consequences which are to be borne in mind. We will be able to advise which track you are likely to be allocated to and the consequences of this. The manner in which the notice of appeal is drafted may affect the track which you are allocated to. We will be able to assist and advise on this.
One consequence of the track allocation relates to costs, both in relation to costs which are likely to be incurred by the parties and also in relation to the Tribunals jurisdiction to require either party to pay the costs of the other.
The general position is that the power to award costs is limited to cases where either party or his representative has acted unreasonably (which is likely to be construed narrowly having regard to the previous practice of the Special Commissioners, albeit in the context of the somewhat narrower ‘wholly unreasonably’ standard) or to cases where a person’s representative has caused wasted costs through improper or unreasonable conduct (which again is likely to be a rare occurrence). This will generally mean that each party will bear his own costs, regardless of the outcome of the case.
The exception to this is in “complex cases” where the default position is that the Tribunal has a wide jurisdiction to award costs unless the taxpayer elects that the more limited costs jurisdiction (the power to award only where a person has acted unreasonably) should apply. Where the wider costs jurisdiction applies, the taxpayer is at risk in relation to HMRC’s costs should he lose the appeal, but conversely may recover from HMRC costs incurred by his should he be successful. (This is unlikely, however, to cover the entirety of the costs incurred).
Because of this, it may be important for the appeal documentation to include a representation that the appeal be allocated to the complex track. We can draft this.
Where a case is allocated to the complex track, then as part of an assessment of the merits of the case and overall costs we will be able to advise you as to the suitability of making any election in relation to the costs.
HMRC statement of case
The other significant consequence of the track allocation will be procedural. A number of procedural steps will occur and a taxpayer’s strategy needs to be carefully thought through. There are standard Directions which govern the progress of a case but these can be varied by agreement, which we will often recommend. In all cases except basic cases, HMRC must send a statement of case, setting out their position on the case including legislation relief upon. This must be provided within 42 days for Default Paper Cases and within 60 days for standard or complex cases.
This is a useful addition to the procedure in direct tax cases as it ensures that the HMRC case is fully explained at an early point. While this might be expected to have occurred at an earlier point, our experience is that this is not necessarily always the case. We will be able to advise at this stage in relation to any further arguments which HMRC might seek to raise.
In Basic cases, there is no requirement to provide a statement of case, but if HMRC seek to raise grounds for contesting the proceedings at the hearing which have not previously been notified to the taxpayer, they are required to notify the taxpayer of such grounds as soon as reasonably practicable and in enough detail to enable the taxpayer to respond to them at the hearing. As such, you should not be prejudiced by the absence of a statement of case in Basic track cases.
Response to HMRC
In a Default Paper case the taxpayer has a further 30 days to make a written reply to both HMRC and the Tribunal setting out any response and providing any further relevant information. You may also require that a hearing is to be held at this point.
In Standard and Complex cases there is no requirement for a reply, but the parties have a further 42 days in which to disclose documents upon which that party intends to rely on produce in the proceedings.
This will, however, be subject to any agreed variation to standard Directions. In most cases the Tribunal issues standard Directions. These will generally provide time limits for exchange of witness statements and other evidence before the hearing. In some cases it is appropriate to seek to agree different Directions, perhaps with a view to agreeing certain of the facts. Agreeing a Statement of Agreed Facts is almost always desirable as it can save time and costs at the hearing and sometimes provide further insight into HMRC’s approach. We will be able to advise you on this aspect of the case.
It is the experience of barristers at Old Square Tax Chambers that the preparation of the case at this point is very often of paramount importance. There are two aspects to most cases, establishing the facts as they happened and applying the law to those facts. The best legal arguments will be of no use unless the factual foundations have been established. The Tribunal will not and cannot take account of facts of which it is unaware. Proper preparation of appeals is crucial and the witness statements (sent to the Tribunal before the hearing) are vital documents.
It is not unheard of for a Tribunal to reach a decision based upon the facts before it which is at odds with what actually happened. Despite the merits of his case, the taxpayer may lose because he or she has not presented all of the relevant evidence to the Tribunal. As such, it is important before the appeal to determine what the legal arguments in favour of the taxpayer are, and what the facts underpinning those arguments are so that those facts can be fully and undeniably established. It is also important to test the robustness of the evidence for the taxpayer as it will undoubtedly be challenged by HMRC at the hearing.
It is on these aspects of the case that the input of an impartial tax barrister can be invaluable. Barristers at Old Square Tax Chambers have significant experience on dealing with these issues and on the approach of the Tribunal to them and can advise accordingly.
Public or private hearing
The general rule is that hearings will be held in public. If a private hearing is necessary to protect a person’s private life or confidential or sensitive information an application can be made for the hearing to be heard in private. Although the Tribunal is unlikely to accede to such a request without good grounds, it is likely to be sympathetic to requests that sensitive information is not disclosed unnecessarily.
Barristers at Old Square Tax Chambers will be able to advise as to how an appeal might be heard in private, or how it can be presented in a way which helps keep sensitive information out of the public domain.
A decision of the First-tier Tribunal can be appealed on questions of law to the Upper Tribunal. Permission is required for such an appeal which must be made within 56 days of the decision. The form for such an appeal can be downloaded here.
In the unfortunate event that you are in a position of needing to appeal from a decision of the First-tier Tribunal barristers at Old Square Tax Chambers will be able to assist in advising on the merits of any appeal and also in relation to the possible grounds as well as drafting such documentation as is necessary.