Tax Litigation

11KBW advises and represents both HMRC and taxpayers in relation to indirect tax litigation. This includes appeals before the First-Tier Tribunal and the Upper Tribunal; judicial reviews; and other High Court proceedings.

VAT

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

Excise

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

Customs Duty

  • Classification
  • Valuation
  • Reliefs
  • Repayment claims

High Court Proceedings

Members of chambers have also acted in a variety of other matters involving tax issues, including:

  • Judicial reviews of HMRC decisions (or failure to reach a timeous decision)
  • Misfeasance proceedings brought against the directors of trading companies
  • Unlawful interference with goods/business claims brought by trading companies against HMRC.
  • Francovich damages claims.

EU Law

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 VAT Cases

Ulster Metal Refiners v HMRC
(Court of Appeal of Northern Ireland)
David Bedenham appeared for the taxpayer who was successful in this appeal which concerned the extent to which HMRC should be held to their pleaded case.

QN Hotels v. HMRC
(Upper Tribunal)
David Bedenham appeared for the taxpayer who was successful in this appeal which concerned allocation of VAT payments in the context of the default surcharge regime.

Littlewoods v. HMRC
[2015] EWCA Civ 515 (Court of Appeal) [2014] EWHC 868 (Ch), [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.

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.

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.

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.

TL Smith Properties Ltd & Anor v Revenue & Customs
[2011] UKFTT 528 (TC)
David Bedenham acted for HMRC in this appeal relating to whether building works constituted an extension or enlargement of an existing building for the purposes of Group 5 of Schedule 8 of VATA.

Lycatel v HMRC
David Bedenham acted for HMRC in this appeal about the correct VAT treatment of pre-paid telephone calling cards.

Ilford Cellular v HMRC
[2013] UKFTT 435 (TC)
David Bedenham acted for HMRC in this appeal against a denial of input tax on the basis that the relevant taxable supply was connected with MTIC fraud and the Appellant should have known of that connection.

RECENT CASES EXCISE

X Ltd, Y Ltd and ABC Ltd v. HMRC
(Court of Appeal)
David Bedenham acts for the taxpayers in these appeal relating to whether established wholesalers should be permitted to trade pending an appeal to the FTT against an AWRS refusal. David is also instructed in a large number of cases stayed behind these appeals.

Ahmed (t/a Beehive Wines Stores)
(First Tier Tribunal)
David Bedenham appeared for the taxpayer who was successful in this appeal against a revocation of his WOWGR approval.

HMRC v. G
(condemnation proceedings)
David Bedenham appeared for the taxpayer who was successful in these condemnation proceedings which arose out of whether rebated fuel could be used in certain mobile drilling rigs.

Eastenders Cash and Carry v. HMRC
[2014] UKSC 34 (Supreme Court) [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.

R (Windsor and Hare) v HMRC and others; R (Panesar) 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.

Abbey Forwarding Ltd (in liquidation) v Hone & Ors
[2010] EWHC 2029 (Ch)
David Bedenham appeared for the former directors in the misfeasance proceedings brought against them by Abbey. Abbey alleged that the Defendants had fraudulently or negligently  allowed it to become involved in significant ‘diversion’ frauds.

R (OAO) Millennium Cash and Carry v HMRC
David Bedenham appeared for the applicant in this judicial review of HMRC’s decision to detain in excess of £1m of trading stock on the basis of a suspicion that it was not duty paid.

R (OAO Seabrook Warehousing Ltd & Ors) v HM Revenue and Customs
[2010] EWCA Civ 140
David Bedenham appeared for the applicants in this judicial review of HMRC’s decision to abolish the WFE scheme in relation to alcohol export.

HMRC v. Roll Your Own Ltd
David Bedenham appeared for the taxpayer in this challenge to a seizure of tobacco and ‘rolling’ machinery worth in excess of £400,000. Issue was whether tobacco products produced by RYO were ‘smokeable’ such as to create a duty point.

GFT UK Retail Ltd v HMRC
[2012] UKFTT 481 (TC)
David Bedenham appeared for HMRC in this appeal concerning whether alcoholic spirits in ‘gel’ form are exempt from Article 27 of Directive 92/83/EEC.

RECENT CUSTOMS DUTY CASES

HMRC v Asda Stores Ltd
[2013] UKUT 223 (TCC)
David Bedenham appeared for HMRC in this Upper Tribunal appeal concerning articles 29 and 32 of the Community Customs Code and valuation of imported goods.

Orlight Ltd v Revenue & Customs
[2013] UKFTT 732 (TC)
David Bedenham appeared for the taxpayer in this appeal relating to the correct classification of LED light bulbs.

S&B Herba Foods v HMRC
[2011] UKFTT 127 (TC)
David Bedenham appeared for HMRC in this appeal relating to ‘special circumstances’ in the context of a repayment claim pursuant to s.239 Customs Code.

OTHER RECENT CASES

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.

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

AstraZeneca v HMRC
David Bedenham was instructed by HMRC in this long running dispute relating to transfer pricing and controlled foreign company issues. The matter settled shortly before the commencement of a 12 week hearing.

Code of Practice 9
David Bedenham has advised on numerous investigations conducted under COP 9