Taxing Better: Using AI to Advance Democracy
Artificial Intelligence (AI) is a threat to democratic norms. Machine learning bots have been used by malign forces to disrupt democratic processes. The literature as a result is replete with warnings! Can the threat be turned on its head – to use AI to advance democratic norms? This is not about the efficiency benefits that…
Detecting hallucinations: the editor’s challenge in an age of AI
Journal editors are already aware that AI poses a significant challenge to the integrity of their journals. AI can be used to exploit frailties in the existing system. The principal flaw is that academic journals rely upon free labour and goodwill from academics who act as editors and peer reviewers (not to mention also the…
Four recent outputs on State aid and taxation
In the past few months, I have been busy pulling together my notes on the Commission’s tax ruling campaign – its litigation against Ireland, Luxembourg and the Netherlands in respect of rulings granted to Apple, Engie, Fiat and Amazon, and Starbucks, as well as the ongoing investigations into the rulings granted to Huhtamaki (by Luxembourg),…
The injustice of the non-dom rules
Since time immemorial it has been accepted that taxpayers with a close connection with a jurisdiction should pay tax on their income in that jurisdiction. This norm informs the taxing rights of countries – literally, their right to impose tax. This means that countries will generally have the right to tax people on their income…
Democracy and Tax Administration workshop
Dickson Poon School of Law, Somerset House East Wing, Strand, London WC2R 2LS Friday 8 September 2023 Registration 9am-9.20am (Wellington Room) Introduction 9.20am-9.30am (Moot Court) Dr Stephen Daly (King’s College London) Morning Session: 9.30am – 10.00am (Moot Court) Francesco Cannas (University of Turin) and Kristof Wauters (KU Leuven/Hasselt University), “Democracy, Separation of Powers and…
Fiat: A misconception at the heart of the tax ruling cases
The ECJ handed down a highly significant judgment today in the case of Fiat and Luxembourg v Commission concerning the application of the EU State aid rules to tax rulings. The case concerned a 2012 tax ruling provided to Fiat Finance and Trade (FFT), a Luxembourg company which provided treasury services and financing to Fiat…
Forthcoming paper in the Modern Law Review
Where a tax authority fails to collect taxes due, who holds them to account? The answer, at a domestic level, will depend on the jurisdiction but may be the courts, Parliament, the media, specialist committees and so on. But there is a case for supranational monitoring of tax collection, particularly in the case of the…
The consequences of HMRC mistakes
The recent Supreme Court case of Tinkler v HMRC [2021] UKSC 39 dealt with the consequences of an administrative error. A notice of enquiry was not sent to the correct address. This is problematic because the statutory provision requires that a taxpayer is given notice of an enquiry. But nobody seemed to notice this mistake…
The UK’s implementation of ATAD and the MLI
In recent years, the UK has been tasked with implementing various tax rules which have been negotiated and agreed at the international level, albeit in very different circumstances, namely the EU Anti-Tax Avoidance Directive (ATAD) and the OECD led Multilateral Instrument (MLI). Despite the freedom to design tax rules brought about through the UK leaving…
Valuation for the purposes of a wealth tax
One of the issues often raised with plans to introduce is wealth tax is the problem of valuation. Aside from political issues around the tax base, and assuming that value should be determined by reference to market value, how does one go about valuing assets which are not often sold on the open market and…
Case note on the Belgian Excess Profits case: far from over
The European Court of Justice has just handed down its decision in the Belgian “excess profits” case (C-337/19 P Commission v Belgium and Magnetrol), the key take-home points of which are: the ECJ found that Belgium operated an “aid scheme”, the case sets a useful precedent for the Commission, and the case is far from…
No taxation without representation: the fragile link between taxation and representation
The slogan “no taxation without representation” immediately summons images of battles, most notably the Boston Tea Party. The phrase was used to rally support for independence of the “colonies” in North America from the United Kingdom. Taxes were imposed, not by local representatives, but rather by the Parliament across the Atlantic in London. “Surely it…
The Amazon State aid case – forget the case and see the wood for the trees
Let’s make one thing clear at the outset – it was right for the Commission to take a look at some of the tax ruling practices carried on by some Member State tax authorities. Professor Omri Marian has written that ‘we have almost no knowledge of the legal and institutional environment that facilitated an almost completely unchecked…
“Tax Day”, the tax administration framework and the 21st century
On the 23rd of March, dubbed by HM Treasury as “tax day”, a number of consultation documents were released. The idea is to “enhance the stability and effectiveness of the UK tax system by outlining a future pathway for its tax administration and tax policy development”. One of the documents concerns the tax administration framework…
Taking computation seriously
We all love a debate about corporation tax – or at least about corporate tax policy. But debates and arguments about theory, concepts and policy can be aided by a practical understanding of the mechanics of computation. Two examples should operate to help elaborate on this point: Business Rates and the Diverted Profits Tax. First…
“The Power to Get it Wrong” now published in April Issue of Law Quarterly Review
My 15,000word article on the State aid tax ruling cases (forthcoming for a long time now) has finally been published in the April Issue of the Law Quarterly Review and is available on Westlaw. In the article, I argue that the central issue in the cases is whether the tax authorities of Belgium, Gibraltar, Ireland,…
The Rule of (Soft Law): Forthcoming article in King’s Law Journal
King’s Law Journal will be publishing a special issue on the COVID-19 Pandemic in 2021. I have contributed a short piece to the issue entitled ‘The Rule of (Soft) Law’, the abstract for which reads as follows: “The COVID-19 pandemic has forced governments around the world to become innovative in how they carry out their…
Understanding tax as a civic right and responsibility: some musings
Spurred on by reading a stimulating and engaging paper by Jeremy Bearer-Friend (in which the author considers means by which non-cash payments could discharge tax liability), I have begun to muse on the idea of tax being a civic right and responsibility, like voting. Now the parameters for exercising the “right” to pay tax may…
Detailed analysis of the GCEU’s Apple decision
On 7 September, a lengthy case note considering the GCEU’s long awaited decision in the Apple case from Professor Ruth Mason of the University of Virginia and myself was published in both Tax Notes Federal and Tax Notes International. It may seem strange that the same article has been published in two different journals of…
Apple podcast and forthcoming article in Tax Notes International
A few weeks ago, I gave an interview to Tax Notes about the Apple state aid case. The podcast is available here and the transcript is available here. Professor Ruth Mason from the University of Virginia also features. In the interview, we both give our two cents on what went wrong for the European Commission…
Case note on Apple: an unexpected outcome
The General Court yesterday handed down its long awaited decision in the Apple case, concerning tax rulings given by the Irish Revenue Commissioners to two Apple companies in 1991 and 2007. The outcome is a surprise – not just because the Court found against the Commission but also of the comprehensive manner in which it…
Guidance and the Rule of Law during the COVID-19 pandemic
The COVID-19 pandemic has forced governments around the world to become innovative in how they carry out their functions. In particular, they need to respond speedily to developments as the scientific evidence becomes more robust. Rules for regulating conduct accordingly need to constantly evolve. The “golden met-wand” of law, to adopt Lord Coke’s phrase in…
Ultra vires the ECB and the implications for EU State aid law
State aid lawyers should take note of today’s decision from the Bundesverfassungsgericht, the German Federal Constitutional Court (BVerfG, Judgment of the Second Senate of 05 May 2020 – 2 BvR 859/15 -, paras. (1-237)). There the Court found that the ECB had acted beyond its competences in instituting the Public Sector Purchase Programme (a programme…
My new book on Tax Authority Advice is now out!
My monograph, Tax Authority Advice and the Public, published by Hart Publishing is now out! It is available in hardback and ebook here (where you can also find a sample chapter on remedies against HMRC). It is 264 pages long and contains a foreword from Nina Olson, Executive Director of the Center for Taxpayer Rights and former National…
Forthcoming publication in the Law Quarterly Review
The assumption underlying the EU Competition Rules is that competition is good, intrinsically as it reflects economic liberty and/or because it produces desirable outcomes. Distortions to competition are accordingly to be regulated. As interventions by the State may create distortions, the State aid rules regulate the assistance that governments may provide to undertakings. But the…
Why would Ireland appeal the Fiat Decision?
I was alerted by Dr Tom O’Shea to the fact that Ireland is appealing the General Court’s decision in the Fiat tax ruling case (Case C-898/19 P [2020] OJ C 54/41). By way of background, the General Court agreed with the European Commission’s assessment that Fiat had been granted unlawful State aid by the Luxembourg…
The constitutional implications of an EU arm’s length principle
A few months ago I wrote two blogs about the implications of the Court of Justice finding that there is in fact an EU arm’s length principle in the ongoing tax rulings cases. The content of those blogs has now morphed into a lengthier article which has just been published in European Taxation. The abstract…
The Good Law Project, Uber and the duty of confidentiality
The Good Law Project (‘GLP’) has legally attacked Uber from several perspectives. First, Uber was sued for a VAT invoice. Second, Jolyon Maugham QC submitted a claim to HMRC to deduct input VAT on an Uber journey. Third, the GLP started a judicial review case against HMRC claiming that HMRC acted unlawfully by failing to…
Access to justice and taxpayer protection
Whilst an exact definition of Parliamentary sovereignty is unlikely to find consensus amongst lawyers, one accepted tenet is that Parliament has legislative supremacy – it may enact any law which it chooses. Parliament for instance, adopting Ivor Jennings’ famous example, can legislate to ban smoking on the streets of Paris. Of course this law will…
When is a tax ruling an ‘intervention’ for the purposes of State aid?
For the purposes of Article 107 TFEU, State aid arises where: there has been an intervention by the State or through State resources the intervention gives the recipient an advantage on a selective basis competition has been or may be distorted; the intervention is likely to affect trade between Member States. Most attention in respect of the…
The doctrine of legitimate expectations in Aozora – normative underpinnings and the public interest in tax collection
Judgment of the Court of Appeal in the Aozora case ([2019] EWCA Civ 1643) was handed down on 8 October. The Court of Appeal upheld the decision of the High Court and thus dismissed the appeal. In the process however, Rose LJ made some interesting remarks in respect of the doctrine of legitimate expectation. The…
The General Court’s decisions in Fiat and Starbucks
The General Court has handed down the first judgments in the rulings cases (see here for a note on the Belgian Excess Profits case, which concerns a scheme rather than the application of law). In Fiat, the Court found that State aid had been granted whereas in Starbucks, the Court found that it had not.…
Tax Authority Advice and the Public
There have been many developments in the tax world in the last six months and to that end, the lack of blogging on this site has certainly not been because there is little to discuss. Rather, my efforts have been focused elsewhere on writing a book, the manuscript for which was sent off to Hart…
The Ricoh Arena, State aid and the parallel with public Law
As a Munsterman, my eyes will firmly be fixed on the Ricoh Arena in Coventry this Saturday where Munster take on Saracens in the European Champions Cup semi-final. Presumably unknown to rugby fans, this stadium has been the subject of litigation over the past few years which has just now come to an end. As…
Hely-Hutchinson and the end to the Mansworth v Jelley affair
Though it is not evident from the Supreme Court’s permission to appeal page, the Supreme Court refused permission to appeal in the case of Hely-Hutchinson v HMRC. This has been discussed in many blogposts on this site (here, here, here, and here) and also in case notes in the British Tax Review (for the High Court…
The Belgian Excess Profits case, de facto and legal discretion
The General Court today handed down its decision in the Belgian Excess Profits case, finding that the Belgian Excess Profits regime did not amount to State aid (on the basis of the arguments put forward by the European Commission). The reason essentially was that the Commission did not persuade the Court that the regime amounted…
Too many powers, too little oversight? The answer is ‘no’
In an earlier blog (‘Too many powers, too little oversight?’) I attempted to summarise the findings and recommendations of the House of Lords Economic Affairs Committee in its report into HMRC powers. Ultimately, the Committee issued concerns about the increased powers of HMRC and the lack of safeguards for affected taxpayers. On the 22nd of…
Too many powers, too little oversight?
Although it won’t quite catch the headlines like the Advocate-General’s decision that Article 50 is unilaterally revocable, the report of the House of Lords Economic Affairs Committee released also on the 4th of December should not go unnoticed. The Committee conducted an investigation into HMRC powers, entitled ‘The Powers of HMRC: Treating Taxpayers Fairly’, looking…
Scott v HMRC: Principles, policies and interpretation
A poet cannot dictate how their poem should be read. Once the words are published to the world, they lack the authority to determine the poem’s meaning. That is not to say that the poet’s subjective intention should be disregarded, indeed it may provide context for how the poem should be read. Critically though, the…
Queen’s honours, tax avoidance and the duty of confidentiality
Queen’s honours are awarded “to deserving people from all walks of life, in public recognition of their merit, service or bravery.” As an Irish citizen, the system has always seemed a bit strange, but nevertheless such awards undoubtedly provide value for recipients. Honours are awarded on the advice of the Cabinet Office, and it has…
The OTS strategic review on HMRC guidance
Guidance is an important part of the tax system – indeed, I would suggest that HMRC guidance is both legally appropriate and normatively desirable. At the VPG Annual Lecture this year in September[1] I advanced the claim that HMRC guidance is desirable as it advances the rule of law, thereby valuing human dignity, and produces…
The canons of taxation and tax collection
It is the start of the academic year and those taking tax law, whether at undergraduate or graduate level, will probably now be introduced to Adam Smith’s canons of taxation. The idea is that a good tax system will comply with several benchmarks. These are helpful for getting students to think critically about the design…
The authority to get it wrong and AG Kokott’s comments
At the International Fiscal Association’s annual congress, Advocate General Kokott weighed in on the European Commission’s State aid cases concerning tax rulings. AG Kokott’s comments suggest that tax authorities, in effect, ought to have a degree of authority about how their national laws ought to apply (the remarks are reported in law360). This echoes an…
Update and case note on Hely-Hutchinson
The issues surrounding the Mansworth v Jelley losses plow on. In the case of HMRC v Hely-Hutchinson, the taxpayer claims that he is entitled to the benefit of HMRC guidance which provided that losses could be claimed as a result of the 2003 Mansworth v Jelley case. HMRC’s response is that the guidance was wrong;…
Understanding “deductibility of expenses” in terms of equality
This blog has sometimes noted the contribution that legal philosophy can make to understanding matters of tax law and policy: for instance, using Hart’s “Core and Penumbra” analogy to understand how the limits of language can result in tax avoidance, or how Tony Honore and Joseph Raz can help us to understand why people pay…
The Supreme Court decision in Gallaher and its impact on tax
The Supreme Court on Wednesday 16 May gave judgment in the case of R (Gallaher) v Competition and Markets Authority. This case concerned an agreement to settle a dispute and the Court of Appeal judgment was given some attention in a previous blogpost. The Supreme Court judgment will be of particular relevance to those following…
Tax avoidance and the limits of language
In its 1955 Report, the Royal Commission on the Taxation of Profits and Income wrote that “Avoidance of tax is a problem that faces every tax system…but until some certainty is reached upon the question of definition, the question as to what sort of steps should be taken to prevent or correct it remains an…
Article in the British Tax Review
Consider the following example. A taxpayer has an assessment issued against her by HMRC. Her argument is that the tax is not due under the relevant taxing provision, or in the alternative that she is entitled to rely upon Extra-Statutory Concession (ESC) A19 which provides that HMRC will “give up” tax due where the body…
The LDF, legitimate expectations and conspicuous unfairness
The Court of Appeal has just handed down judgment in the case of City Shoes v HMRC, in which the taxpayers claimed to have a legitimate expectation as to certain treatment from HMRC. That treatment related to the ‘Liechtenstein Disclosure Facility’ (LDF). The LDF allows taxpayers to settle outstanding tax liabilities relating to assets in…
When public authorities make mistakes
A recurring issue that this blog has sought to explore is the problem of public authorities making mistakes. This blog for instance has spent some time considering the case of Hely-Hutchinson, wherein the Court of Appeal placed reliance upon the fact that public authorities like HMRC are entitled to renege on earlier commitments where this…
HMRC’s right to get it wrong
This blog and some published work which has emanated from it has focused upon what happens when HMRC gets it wrong – when the authority advises a taxpayer, but that advice turns out to be wrong for instance whether the advice is in the form of general guidance or in a more bespoke ruling issued…
EU FairTax working paper on tax competences
A new peer-reviewed working paper from Dr Ulrike Spangenberg (Umea University), Prof Ann Mumford (King’s College London) and myself has just been uploaded here. The abstract for the piece reads as follows: “This paper analyses existing tax competences in EU law, in the light of European and international obligations, and their evolution since the initial…
HMRC as tax advisor
A college lecturer at the University of Oxford tutors students in a particular course, helping them on their voyage towards the exam (in addition to helping them pick up additional skills also). However, the college lecturer will generally not set the final exam nor mark the final scripts. Very few students will have been taught…
TLRC Discussion paper: new powers and novel protections?
A discussion paper by Tracey Bowler for the Tax Law Review Committee, a Committee of the Institute for Fiscal Studies, was released in November and focuses upon ‘new’ HMRC powers. Vanessa Houlder gives an overview of the paper in a piece for the Financial Times yesterday. Both the report and Houlder’s article are worth reading.…
Rowe v HMRC [2017] EWCA Civ 2105: a case note on ‘notices’
On the 12th of December 2017, the Court of Appeal handed down judgment in the joined cases of Rowe v HMRC and Vital Nut v HMRC, in which dozens of taxpayers challenged the decision of HMRC to issue to them notices requiring the upfront payment of disputed tax – ‘upfront’ in the sense of being…
Tax Transparency Report
Before anything can actually be assessed, there must be information that can form the basis of the assessment. This is true in tax as it is in any other walk of life. A further question arises in respect of the source of that information. Should it be purely from taxpayers? Or should tax authorities be…
The doctrine of legitimate expectations: guidance, errors and reliance
Judgment in the case of R (Aozora) v HMRC [2017] EWHC 2881 (Admin) was handed down yesterday. Once again, a taxpayer sought to rely upon the doctrine of legitimate expectations. Once again, the taxpayer lost. The case however flags up important issues in respect of the doctrine of legitimate expectations, in particular the effect of…
Distinctions and blurred lines in tax
Over the past few days, I have had the pleasure of marking around 50 tax essays. And I do mean it has been a pleasure, because in the process of marking you must confront the fundamentals underpinning the questions that have been asked of students. A common issue throughout the questions has been how tax…
The Margin of Appreciation in Tax Law
In a recent article for the British Tax Review (see here for Peacock, ‘The “Margin of Appreciation” Afforded in the Tax Tribunals: is there any Limit to Judicial Deference?’ (2017) BTR 404), Jonathan Peacock QC explores recent caselaw where taxpayers have sought to challenge actions by HMRC where a “margin of appreciation” is present. In…
The latest twist in the Mansworth v Jelley tale
Late on Wednesday afternoon, the Court of Appeal handed down judgment in the case of R (Hely-Hutchinson) v HMRC [2017] EWCA Civ 1075. It is the latest twist in the long running saga concerning what has come to be known as ‘Mansworth v Jelley losses’ (and has been the subject of this blog here, here…
The language of tax avoidance cases
The opening line of single Supreme Court judgment in UBS v HMRC [2016] UKSC 13 from Lord Reed reads as follows: “In our society, a great deal of intellectual effort is devoted to tax avoidance. The most sophisticated attempts of the Houdini taxpayer to escape from the manacles of tax” With an opening line like…
Yet another case concerning APNs
Accelerated Payment Notices (‘APNs‘) have been frequently visited as a topic on this blog (see here, here, here, and here). To recap, APNs require taxpayers to pay disputed tax upfront before proceeding with an appeal (provided that certain conditions are satisfied). APNs may be issued, pursuant to section 219 of Finance Act 2014 where the…
Legal philosophy and a “voluntary” obligation to pay taxes
Legal philosophers (and philosophers more generally) have a beautiful way of cutting through the noise and expressing in the simplest language that which takes us mere mortals thousands of words to explain. This clarity presents itself of course whenever these people stumble upon tax. Take for instance this one paragraph from Tony Honoré in which…
Tax Exceptionalism – A UK perspective
In July 2016, I was tasked with responding to a presentation on “Trends in Tax Exceptionalism and Tax Litigation” by Professor Kristin Hickman of the University of Minnesota and Donald Korb of Sullivan and Cromwell. The event was organised jointly by the Journal of Tax Administration and the Centre for Tax Law, University of Cambridge.…
Studies in the History of Tax Law
The Centre for Tax Law at the University of Cambridge hosts a biannual Tax History conference. Papers selected for the conference are reviewed, edited and later published in the collection “Studies in the History of Tax Law” (published by Bloomsbury) which is now on to its 8th Volume. I had the pleasure of presenting my…
Publication in the Bulletin for International Taxation
I have recently published a short article in the Bulletin for International Taxation entitled “The Relationship between Tax Authorities, Large Multinationals and the Public”, the abstract for which reads as follows: In this article, the author explores accusations levelled at the revenue authorities of Ireland and the United Kingdom in response to their treatment of multinationals,…
Remember that Swiss/UK Tax Cooperation Agreement? Vrang v HMRC [2017] EWHC 1055
I have written previously about the 2011 Swiss/UK Tax Cooperation Agreement (‘the Agreement’), which provided for UK resident taxpayers with bank accounts in Switzerland: to be subject to a one-off payment on 31 May 2013 to clear past unpaid tax liabilities and/or to be subject to a withholding tax on income and gains for the…
Reflections on the Mansworth v Jelley hearing in the Court of Appeal
The author of this blog has written previously about the fabled ‘Mansworth v Jelley’ losses. It has been the feature of an extended published case note and two blogposts (here and here). The Court of Appeal heard the appeal in the Hely-Hutchinson case, which concerns these Mansworth v Jelley losses, two weeks ago (at which…
Mansworth v Jelley revisited in the Court of Appeal
Listed for hearing before the Court of Appeal today is the case of R (Hely Hutchinson) v HMRC. The case revolves around the controversial Mansworth v Jelley claims. The taxpayer Ralph Hely-Hutchinson was successful before the High Court in this judicial review (which I reviewed in a lengthy case note for the British Tax Review which can be…
Another ‘Accelerated Payment’ case, another loss for the taxpayers
Accelerated Payment Notices (‘APNs’) and Partner Payment Notices (‘PPNs’) have since 2014 been clogging up the Administrative Court. A rough estimate suggests that up to 87 cases have been petitioned for review.[1] In fact, there are currently 4,116 applicants or potential applicants seeking interim relief from APNs/PPNs which HMRC’s records show amount to a total…
The Good Law Project’s Uber case
Jolyon Maugham QC recently started the ‘Good Law Project’, which seeks to “use strategic legal cases both to change how the law works and to drive demand for further law change”. The first such case seeks to challenge the business model of Uber by questioning whether VAT ought to be charged by drivers. The case…
Gulliver v HMRC and the appeal/review distinction
Many countries operate a system of ‘rulings’ whereby taxpayers can approach the revenue authority of that country and ask for a determination in relation to particular elements of their tax affairs or in relation to specific transactions. Some countries have a comprehensive system for regulating rulings (as in Australia). Others like the UK offer formal…
Case note in the British Tax Review
In a piece published in the March issue of the British Tax Review (available on Westlaw and here), I look at the recent case of Ingenious Media. This is a case I have blogged about on numerous occasions (here, here, here and here). The case note is lengthy as it deals with the decision not just of the…
“Health warnings” and legitimate expectations: Samarkand
In the recent Samarkand case, the Court of Appeal upheld the conclusions of the Upper Tribunal, thereby dismissing the taxpayers’ appeals and judicial review claims, in addition to dismissing HMRC’s cross appeal. The case itself has gained attention generally for being one of the many cases concerning schemes which attempted to utilise the now notorious…
The Commission, rulings and a prior question of deference
Noise in terms of the Commission’s investigation into purported breaches of State aid provisions by Member States has been increasing steadily over the past two and a half years. To recap, the Commission has opened a number of investigations (and produced some decisions) concerning rulings agreed between multinationals and various Member States, namely, Luxembourg, the…
Legal accountability in the case of HMRC
The Public Accounts Committee, a body charged with responsibility on behalf of Parliament for holding HMRC to account, noted in 2011 that it had ‘serious concerns that large companies are treated more favourably by [HMRC] than other taxpayers’ (Public Accounts Committee, HM Revenue & Customs 2010–11 Accounts: tax disputes (HC 2010-12, 1531) 4.). The fact that…
MyWaitrose Card and Taxpayer Privacy
A confession: I shop at Waitrose. Readers with similar shopping habits will know that signing up for and using a Waitrose card comes with many benefits – free coffee, newspaper at the weekend, discounts on selected items etc. All you have to do is use your MyWaitrose Card when you shop. Why does Waitrose provide…
Ingenious Media Part 4: confidentiality, the Public Accounts Committee and Anthony Inglese
I would be a terrible lawyer in practice. Far too much of my time is spent thinking about the way that things ought to be and why they are the way they are. The most important thing for a client and a court however is what the law is. To this end, whilst there is…
The Taxing Consequences of Brexit
With Article 50 now set to be triggered before the end of March 2017, it is timely to reflect upon the extent of what shall be up for grabs in the negotiation. In an article entitled ‘The Taxing Consequences of Brexit’ to be published in a special Brexit edition of the King’s Law Journal, I…
Oversight of HMRC soft-law: lessons from the Ombudsman
My latest article entitled ‘Oversight of HMRC soft law: lessons from the Ombudsman’ has just been published in the Journal of Social Welfare and Family Law. There is a link to the published version here. The article seeks to set out the important contribution that the Ombudsman has played in the past in respect of…
HMRC, the Panama Papers and the use of leaked information
Last week at the Society of Legal Scholars conference in Oxford, Michael Dirkis of the University of Sydney presented a paper entitled ‘Having your cake and eating it too: The role of the judiciary in facilitating the effectiveness of exchange of information agreements and imposing limitations on the use of the information obtained’. Professor Dirkis’…
The APN litigation continues
Introduced in 2014, the ‘Accelerated Payments Regime’ has been challenged now numerous times. This is unsurprising. Taxpayers who engaged in schemes some years ago are finding themselves with a significant tax bill which must be paid within a very short time frame. With no formal appeal, taxpayers are left with little option but to try…
The curious case of Apple
What to make of the Commission’s decision that Ireland granted State Aid to Apple to the tune of up to €13bn? On the one hand, very little as we are yet to see the full decision and all the relevant details. The decision will be released as soon as there has been agreement as to…
Three recent administrative law cases in tax. Part 3: R (Veolia) v HMRC
This is the third of a three part series of posts cataloguing recent administrative law cases concerning tax. In this, the recent Administrative Court case of R (Veolia and Viridor) v HMRC is explored. It is particularly fitting that this would be the final part to the series, as each post has had to deal…
Three recent administrative law cases in tax. Part 2: R (ELS Group) v HMRC
This is the second of a three part series of posts cataloguing recent administrative law cases concerning tax. Unlike Biffa Waste which concerned the issue of a standard legitimate expectations claim, the issues in the Court of Appeal case of R (ELS Group) v HMRC were i) whether HMRC guidance could apply retroactively and if…
Three recent administrative law cases in tax. Part 1: Biffa Waste
This blogpost is one of a three part series of ‘case notes’ on recent HMRC cases concerning matters of administrative law. The first, Biffa Waste [2016] EWHC 1444, is a fairly straightforward case from an administrative law perspective. The relevant company had obtained a ruling in 2009 from HMRC in respect of the application of…
The Fiscal Coin of Tax and Spending
A few days ago, Rasmus C. Christensen (aka FairSkat) tweeted that ‘‘Tax is only one side of the fiscal coin. Expenditure is the other’’. This should be no great surprise, but it is nevertheless something worth reminding ourselves about. When we talk about the objectives that our tax system, few would disagree that one goal…
Some brief thoughts on Brexit and tax
It is a fallacy to believe that the UK can completely extricate itself from the EU. The reason is simple. So long as the EU exists, the UK will have to engage with it if it is to actually trade with the bloc. But with the UK no longer at the table adding input in…
Ingenious Part 3: A trip to the Supreme Court
I’m at a loss for a metaphor or phrase which aptly captures the tumultuous times we currently live in. For my own part, I’ve spent the last 8 days glued to twitter, finding it almost impossible to get any work done. But the world keeps turning, and the (tortuously clichéd) inevitability of tax remains true.…
The free movement of people: a quick defence
As an Irishman, a referendum on the EU is nothing new. Since the Supreme Court in Crotty v An Taoiseach [1987] interpreted our constitution as requiring a referendum any time there is a shift of powers to the European Institutions not “necessitated by the obligations of membership of the Communities”, there have been 7 referendums…
Oxfam’s legitimate expectation
Oxfam’s tag a bag scheme, whereby you make a claim for gift aid on donations of goods rather than just cash, has come under scrutiny from the tax community. It has been claimed by some that the scheme falls foul of the law. But HMRC’s guidance explicitly makes an allowance for it (see: Chapter 3.42 Claiming…
Taxes are the price we pay for a civilized society
The above quote is apparently to be found above the entrance to the IRS headquarters at 1111 Constitution Avenue, Washington DC and is attributed to Oliver Wendell Holmes. But there are many other variants that are equally attributed to the “The Great Dissenter”, such as “I like to pay taxes. With them I buy civilization”;…
To tax and to please
The life cycle of a PhD is curious. It begins with an awning vision and an inspiration to make a great change to the world. That slowly whittles as time and personal crises elapse, so that closing to the end one can barely summon the enthusiasm to produce and defend a significant contribution to the…
Should politicians disclose their tax returns?
It’s been quite a week hasn’t it? Allegations of misfeasance, corruption, tax avoidance and evasion have been flying around. What’s curious about the fallout from Pandora’s Panama box is actually where we have ended up. This was a mass disclosure of documents to the press, not unlike Wikileaks and the Snowden affair, but whilst the…
Panama, Tax Havens and Megacorporations
Full disclosure: I don’t trust today’s mega tech corporations. Undoubtedly, they provide services that we all like, and nowadays, even need. But I don’t trust the supranatural profits that they extract. That screams either market failure or monopolizing techniques, or most likely, a combination of both: surreptitious in the former, unscrupulous in the latter. And…
Much APN about nothing
‘Accelerated Payment Notice’ (or ‘Partner Payment Notice, nothing of substance turns on the distinction) judicial reviews are coming thick and fast (see: Rowe; Aston; Walapu). None so far have been successful before the Courts, although the first JR (Rowe v HMRC) had a fleeting success when the claimants were granted a temporary injunction against the…
Sugar tax revisited: a cause for celebration?
It’s early morning over here in New South Wales, so I’m quite late getting around to reading up on the interstices of the UK budget. As I blogged on the issue some time ago, it seems appropriate to comment on the Chancellor’s announcement in the budget that he intends to introduce a sugar tax. The…
Reflections on Judicial Review in Tax
Judicial Review is an area of law which requires restraint on the part of the courts. Unlike statutory appeals which endow the court with the right to resolve disputes between parties, reviews assess the integrity of decisions against which the legislature has not provided a statutory right of appeal. From a constitutional perspective, it is…
Playing Devil’s Advocate: Country by Country Reporting.
When I moved to the UK in 2012, it was just after Jimmy Carr had been engaged in that notorious tax scheme scandal. Since then the public’s interest in tax has been characterised by a series of ebbs and flows, rarely moving out of the spotlight and, sometimes, for weeks on end, occupying the Zeitgeist…
Seeing the wood for the trees in the case of Uber and the implications for Country-by-Country reporting
In the Guardian this weekend, there was a curious column which (h/t Jolyon Maugham QC) simultaneously accused Uber of both making huge losses and as having been the beneficiary of governmental tax avoidance facilitation. What the article failed to notice however is that Uber may well have committed other legal sins. With so much emphasis…
Could State Aid Law protect Buy-to-Let Landlords?
The Guardian and The Telegraph have posted articles in the last week picking up the quandary of buy-to-let landlords. By a combination of changes in the summer budget and autumn statement, the previously lucrative venture whereby landlords would purchase property with the sole intention of renting has now been placed “in the red”. Landlords could…
Lord Janner and a “ridiculous” trial of the facts
Is it ridiculous that the CPS is still considering a ‘trial of the facts’ of the recently deceased Lord Janner? Well, in the context, not quite. If it is ridiculous to have a ‘trial of the facts’ now, it must also have been ridiculous to have a trial on the facts whilst he was still…
Morality revisited: Robert Ewing on the Duty to pay tax
Last week, I blogged about the Flour Tax: an episode from the 1930s in Australia which I came across whilst researching the history of the Australian Tax Office (‘ATO’). Another gem from this research is not a story, but a person, namely Robert Ewing. A lifelong civil servant, he was the second person to head…
Flour Tax: the classic tax conundrum
The final stage of my PhD focuses upon the Australian Tax System, owing to which I have come in contact with some fascinating literature exploring the history of taxation in Australia. One book for instance, +400 pages long entitled: “Working for all Australians 1910-2010: a brief history of the Australian Taxation Office” by Leigh Edmonds…
A few quick thoughts on the Chancellor’s statement
As with last year, there is likely to be much written on the blogosphere and in newspapers over the next few days dissecting George Osborne’s Autumn Statement. Rather than attempting to extensively cover it, I just seek here to tease out a few of my own notes on the tax issues which arose in the…
Tax and State Aid: an unsustainable framework
On Friday 20 November, the Tax Law and Policy Discussion Group at Oxford had the privilege of hosting Conor Quigley QC for a talk entitled ‘Tax and State Aid Law: Recent Experiences’. Conor is the foremost expert on State Aid Law and just two months ago released the 3rd edition of his textbook ‘European State…
Starbucks, the Commission and the case of the ‘Missing Bean’
Yesterday evening, I sat down in the ‘Missing Bean’ café on Turl Street in Oxford to drink my customary flat white (despicable right?!) and read about the Fiat and Starbucks Commission decisions. The ‘house roast’ coffee beans at the ‘Bean’ are imported from Bolivia, Honduras & Brazil, roasted in Cowley (East Oxford) with the know-how…
Bringing Mansworth v Jelley back to life
Listed for hearing before Mrs Justice Philippa Whipple (appointed on the 1st of October) in the High Court today is the case of R (Hely Hutchinson) v HMRC. The case revolves around the controversial Mansworth v Jelley claims. Background The Mansworth v Jelley (2003) case concerned an assessment to CGT. The taxpayer in this case…
When you wish upon a British Bill of Rights
The proposal to abolish the Human Rights Act 1998 (‘HRA’) and replace it with a British Bill of Rights has been simmering on the back burner for some time now. It was proposed during Chris Grayling’s tenancy as Justice Secretary (particular proposals which Dinah Rose QC referred to as “just so rubbish” and “so stupid”)…
The protection of ancient rights and liberties… of some
On the 22nd of July, the Ministry of Justice announced that it would be consulting on introducing fees for those remaining tribunals which do not currently charge. Importantly, this includes the first tier and upper tier tax tribunals. The government hopes that by doing so, it might be able to recoup some of the costs…
State Aid, is it all encompassing?
State Aid, a constant in the headlines these days, arises where four conditions are satisfied: there has been an intervention by the State or through State resources the intervention gives the recipient an advantage on a selective basis competition has been or may be distorted; the intervention is likely to affect trade between Member States. On 22 July…
Should we introduce a sugar tax?
In July, the British Medical Association (‘BMA’) has called for a tax of 20% to be added to the cost of sugar-sweetened beverages. The calls comes as part of a package of reforms, such as subsidizing fruit & vegetables and increasing the level of resources directed at education on nutrition, proposed by the BMA to…
Theresa May, Higher Education and Immigration
The Home Secretary Theresa May is said to be proposing immigration reforms which will prevent non-EU students from working whilst studying in the UK, will force those students to leave immediately on finishing their courses and prevent dependents or spouses from working in the UK (although only those who accompany persons studying for more than…
Inheritance Tax, why even bother?
Given that the measure had been flagged for some time, few should have been caught off guard on Wednesday when George Osborne announced the effective increase in the Inheritance Tax threshold to £1mil by 2020. For those wondering why he decided to do so, one need look only at the popularity of the tax: people…
Philip Baker and his “controversial” remark about corporate tax policy…
I like that tax is headline-grabbing these days: if for nothing else, people are much less apprehensive now when I tell them I’m doing a PhD on tax law! On Sunday, Simon Bowers reported in the Guardian on the OUCBT Annual Summer Conference and the “controversial” remark made by Philip Baker QC on Corporation Tax.…
Two disclosures and a hypothesis: My troubles with Labour
Disclosure seems to be the call of the day, so I’ll begin this blog with a disclosure. I am now a card-carrying member of the Fabian Society. My previously placid, politically neutral self was shocked into action by the revelation that many of my lawyer friends in the General Election had voted Conservative. Don’t take…
Equity does not act in vain
A little over 3 years ago, three days before I was to sit my final exam, namely ‘Equity and Trusts’, my car was broken into and my schoolbag stolen. Irony of ironies, my schoolbag was empty for all but Equity notes-so, all the robber got was a good lesson in ‘fairness’ (for lay readers-Equity is…
Two friends and a Magistrate TWOCing
Two friends recently attended the Magistrate’s Court in Westminster and arrived back with tales of TWOCing. My initial thought, that this was the latest permutation of a Miley Cyrus dance routine, was of course incorrect. The acronym in fact stands for the crime of ‘Taking Without Consent’, essentially joyriding. It was introduced amid concern at…
Public confidence in HMRC: to review or not to review
“Make £30,000 and they will hound you until the cows come home; make £30,000,000 and you tell them how much you’d like to pay” Most of us engaged in tax will at one stage have heard this phrase (or some variant) uttered in disdain. The perception that big companies and wealthy individuals get an easier…
Could someone tell the newspapers that April fools day lasts just 24 hours?
On the 1st of April it was announced in The Guardian that Jeremy Clarkson had embraced the drive for fossil fuel divestment, a far cry from his previous position as climate-change skeptic. Given the day that was in it, it was immediately apparent that such was a ‘classic’ April fools day gag. It seems as…
An explanation of cause is not a justification by reason (CS Lewis)
The non-dom rule, a relic of the British Empire, appears all but set to go. In brief, the rule provides that non-domiciled individuals pay tax only on income earned in the UK and to pay on a remittance basis for that money brought into the UK. It also carries many other tax advantages relating to…
Ingenious Media revisited: what is the court’s proper place?
Introduction Having commented last week on the case of Ingenious Media, it is appropriate now to briefly revisit this case, given that the Court of Appeal on Wednesday unanimously dismissed the appeal by the taxpayers. There is one particular aspect of this judgment which ought to make public lawyers squeamish, and that is the level…
The Hart of the tax avoidance issue: ‘Core and Penumbra’ revisited
In recent days, I’ve been reading back over my Jurisprudence notes in order to understand the place of law in achieving administrative justice-does the answer lie in structuring rules, or in providing discretion, or finding a balance between law, rules and discretion, or deciphering principles and so on. All of these propositions, when stripped, retreat…
HMRC, human rights and public confidence: the impact of repeated hammering
HMRC is certainly taking a hammering these days. Those in the twittersphere have questioned their modus operandi and the press has hounded the public authority for failing to prosecute more Swiss bank account holders. Both the Treasury Select Committee and Public Accounts Committee have likewise interrogated HMRC’s top officials. Public confidence in the administration of the…
WHAT HAPPENS IN SWITZERLAND STAYS IN SWITZERLAND…
A INTRODUCTION Global headlines have been caught by the release of data detailing the facilitation of tax dodging, likely evasion,[1] by the Swiss branch of HSBC. There is in reality nothing new about the revelations-the ‘Lagarde List’ has been blowing around the tax authorities’ desks for several years at this stage. Indeed, HMRC have been…
What the DPT tells us about politics…
Yesterday at the OUCBT conference on Diverted Profits tax (‘DPT’), the ‘respondents’ on behalf of the government (Philip Baker QC and Mike Williams of the Treasury) were quick to point out that the DPT was aimed at contrived, artificial arrangements. If this were the case, I asked Mike Williams, then would the GAAR apply to…
Are Accelerated Payment Notices unconstitutional?
Some commentators have been apocalyptic about the introduction of Advanced Payment Notices (‘APNs’). The APN regime broadly requires that taxpayers pay disputed tax upfront, before being able to challenge HMRC’s assessment through the normal channels. It is certainly ‘game changing’ and frankly unprecedented in UK Law generally. But is this new regime unconstitutional? Of course,…
A few notes on the Chancellor’s Autumn statement
There is likely to be much written on the blogosphere and in newspapers over the next few days dissecting George Osborne’s 50 minute-long Autumn Statement. Rather than attempting to extensively cover it, I just seek here to tease out a few of my own notes about the Chancellor’s speech. First and foremost, there were a…
Tax, Morality and Reality
1. Introduction This piece was originally posted on Joylon Maugham’s blog (waitingfortax.com) on 13 November 2014. It is reproduced here with permission. The recent debate on tax in the UK has strayed into the murky area of questioning the relevance of morality. Chair of the Public Accounts Committee Margaret Hodge has stated that exploiting the…
Are we evading ‘avoidance’ definitions?
Discourse is essential to fostering change. But discourse is not groups of people talking past each other; nor is it commentators using the same language, but according words differing interpretations to suit their argument. For discourse to foster change, it is essential that the language used in the debate is aligned and conceptually correct. The…
Tax, Morality and Reality
The recent debate on tax in the UK has strayed into the murky area of questioning the relevance of morality. Chair of the Public Accounts Committee Margaret Hodge has stated that exploiting the complexity of tax law to reduce tax liability is “morally reprehensible”. David Cameron meanwhile in the last week voiced the opinion that…
Musings on our ‘shared history’
Originally Published in COLR Letters to the editor here at http://corkonlinelawreview.com/index.php/2014/10/20/musings-on-our-shared-history/ and reproduced with permission It has been much the repetitive mantra of late that Ireland and the UK have a “shared history”. Recent events in Ireland relating to tax however demonstrate both symmetries and asymmetries of this ‘shared history’. Whilst the introduction of new…
Sunday Bloody Sunday
The Sunday newspapers lit up with news of Bono’s interposition into the debate on Ireland’s tax system. Referring to the current pressure from Europe in an interview with The Observer, Bono appeared defensive of Ireland’s generous tax regime: “Look, Ireland is not going to back down on this. We are a tiny little country, we…
De Beers Revisited: 98 years on
The European Commission is certainly not letting up easy on Ireland. In addition to the investigation into Apple’s tax arrangements with the Irish Revenue Commissioners, it was reported last night in the FT that the Commission is now investigating the ‘Double Irish’ tax structure. This highly controversial measure allows companies to significantly reduce their tax…
“There is no harm in being sometimes wrong – especially if one is promptly found out” JM Keynes
Complexity is an ugly derivative of the tax system. There is even an argument to be made that it goes to the heart of the taxing provisions given that, fundamentally, the majority of items upon which we levy tax are artificial. For instance, the income which we eventually tax is not visible or tangible, but…
How do you like them, Apple?
The Commission’s letter publishing the reasons for its investigation of Apple’s advance pricing arrangements in Ireland this week (available here: http://ec.europa.eu/competition/state_aid/cases/253200/253200_1582634_87_2.pdf) has spawned much debate in the tax community. Indeed, it comes against the background of some serious activity with regard to reform of Transfer Pricing. It appears thus far however, that one particular element…
“What has the State ever done for me?”
We need to shift the discourse. Too often taxes are justified or debated on the basis of what one gets out of the tax system. Like the NHS? Pay your taxes. Like good schools? Pay your taxes. Fire-service? Pay your taxes. But this feeds a misconceived impression: that what you pay in taxes, you get…
You must be logged in to post a comment.