Tax Litigation

We appear (both for HMRC and tax payers) in appeals before the First-Tier Tribunal and the Upper Tribunal; in judicial reviews; and in High Court proceedings where the context for the claim is indirect tax.

Excise Duties

Members of chambers have acted in a variety of excise matters including:

  • Duty point appeals (including large scale diversion frauds)
  • WOWGR registration appeals
  • Condemnation proceedings (High Court and magistrates’)
  • Restoration appeals

Customs Duties

Members of chambers have acted in a variety of customs duty cases including appeals relating to:

  • Classification
  • Valuation
  • Availability of relief from duties (e.g. inward processing relief)

VAT

Members of chambers have acted in a variety of VAT cases including matters relating to:

  • De-registration
  • Place of supply
  • Fraud (including “Knowledge/means of knowledge” appeals)
  • Invalid invoices (Regulation 14)

Judicial review and other proceedings

Members of chambers have acted in a variety of other matters where indirect tax issues formed the factual backdrop:

  • Judicial reviews of HMRC’s failure to make a decision
  • Judicial reviews in relation to detention under s.139 CEMA
  • Misfeasance proceedings brought against the directors of trading companies
  • Francovich damages claims.

EU Law

Indirect tax litigation will very often raise issues of EU law, in which members of chambers also have considerable expertise. Members of chambers have acted in litigation both in the UK and Luxembourg concerning:

  • The Community Customs Code
  • Recovery of compound interest under EU law
  • The Capital Duties Directive
  • The VAT Directives

Recent Cases

Eastenders Cash and Carry v. HMRC [2012] WLR (D) 6

Jonathan Swift QC acted in this case concerning the scope of HMRC’s power to detain goods under the Customs and Excise Management Act 1979 where they believe that excise duty has not been paid on the goods. By a majority, the Court of Appeal decided that goods can only be detained if in fact excise duty has not been paid; it is not sufficient merely for HMRC to believe on reasonable grounds that duty has not been paid.

Isle of Wight Council & ors v HMRC (2013)

Clive Sheldon QC and Edward Capewell are instructed in this group VAT litigation case concerning whether local authorities are required to account for VAT charged on off-street parking activities. The case will be heard in the Upper Tribunal later this year.

Littlewoods v. HMRC [2010] STC 2072 and [2011] STC 271 (Chancery Division); and C-591/10, CJEU

Jonathan Swift QC appears for HMRC in this case in which the primary issue is whether there is a right under EU law to recover compound interest on VAT overpaid contrary to the requirements of EU law. The case for the claimants is argued on the basis that the right to compound interest is an aspect of the EU law principle of the right to an effective remedy. The decision in this case is therefore one of general importance; the financial value of the case is in excess of £1 billion.

R (Panesar) v HMRC and others; R (Windsor and Hare) v HMRC and others [2011] EWHC 842 (Admin).

Jonathan Swift QC and Rachel Kamm represented HMRC in judicial review proceedings challenging the grant of search warrants.

Totel v HMRC: [2012] EWCA Civ. 1401; [2012] S.T.I. 3230; The Times, December 27 2012. Jonathan Swift QC and Rachel Kamm appeared for HMRC in this case concerning the removal of the right of appeal from the FTT to the Upper Tribunal on the question of whether a taxpayer could be excused the requirement to pay tax (prior to bringing an appeal) on grounds of hardship.

HSBC and Bank of NY Mellon v. HMRC

Jonathan Swift QC appeared for HMRC in this case concerning the compatibility of Stamp Duty Reserve Tax with the provisions of the Capital Duties Directive. The meaning and effect of article 10 – 12 of the Directive were in issue; and also the territorial scope of EU law (the taxable event occurred in New York). This case was a lead action –a number of cases in the FTT were stayed behind and cases in a Chancery Division Group Litigation Order were also stayed pending the outcome of this case.

(2012)

Harini Iyengar advised on a dispute between a former employee and employer about the treatment of PAYE in connection with a posting abroad.

Investment Trust Company v. HMRC

Jonathan Swift QC appears for HMRC in this case arising out of overpayments of VAT over a number of years.