I’ve been spending a lot of time looking at Anson [2015] UKSC 44 recently (full disclosure: I was part of HMRC’s team on Anson, although mainly on the treaty interpretation point). On one level, it is a very simple decision: it was a finding of fact by the FTT that it was entitled to make. But on another level, it is very complex, working out exactly how it arrived at its finding.
To me, it is very interesting that although the FTT said that together the operating agreement and section 18-503 of the Delaware Act meant that Mr Anson was entitled to the profits as they arose, it did not say what part each played in its decision. As section 18-503 has a default provision, you have to ask if this would have been enough for Mr Anson? Whatever the answer to this point is though, the huge question is whether the next FTT panel will make the same finding. I suspect not.
What do you know now that you wish you’d known at the start of your career?
How complex tax is, then I may have stuck with my original career of hotel and catering management. In all seriousness, the complexity has got more than a little out of hand, but I find taxation, especially international taxation, fascinating, as there is always something new to learn, and if you ever start making assumptions it bites you.
Are there any new rules that are causing a problem?
DAC 6 is a particular problem. I know from personal experience that writing guidance is horribly difficult (blame me for the double taxation relief chapter in the Bank Levy Manual), but the DAC 6 guidance is not detailed enough and it sometimes leaves you wondering what HMRC’s view is and whether you need to report a transaction. Although the Court of Appeal said in AozoraGMAC [2019] EWCA Civ 1643 that the opinion of an adviser is often as valid as HMRC’s, clients not unreasonably want the reassurance of knowing that our decision definitely agrees with HMRC’s view (full disclosure again: I had a passing involvement in Aozora GMAC).
Has a recent case has caught your eye?
I think the EU aspect of Fisher [2020] UKUT 62 (TCC) is very interesting. The extension of Mrs Fisher’s freedom of establishment to her husband, based partly on the same principle as that for groups of companies, seems fairly obvious now it’s been articulated. I’m very interested to see how that goes forward with the Court of Appeal (and possibly the Supreme Court), as it could have very wide application, and one that will not necessarily stop on the 31 December 2020 where a spouse is a national of a member state.
If you could make one change to a tax law or practice, what would it be?
Why not ask for the impossible: for politicians to stop grandstanding on tax issues. If they haven’t got anything sensible to say, they’d have to stay quiet. Or if the politician asks questions (to both business and HMRC), they’d have to both politely listen to the answers and acknowledge when their target makes a good point. They must not just ask bullying questions.
And finally, you might not know this about me but...
I was only supposed to work in tax for six weeks. My mum got me a job in October 1988 as a temporary revenue assistant at the Inland Revenue to ‘weed’ the self-employed files in Birmingham 6, which involved taking out any tax returns over six years’ old and put them in the storeroom. I found some de-mob returns from 1946/47, so that tells you how often the job was done.
I was then supposed to do a degree in hotel and catering management, but I enjoyed the atmosphere and camaraderie of my colleagues and the work too (once I was allowed out of the storeroom), so I ended up staying for nearly 30 years. I was ‘temporary’ in a true tax sense.
I’ve been spending a lot of time looking at Anson [2015] UKSC 44 recently (full disclosure: I was part of HMRC’s team on Anson, although mainly on the treaty interpretation point). On one level, it is a very simple decision: it was a finding of fact by the FTT that it was entitled to make. But on another level, it is very complex, working out exactly how it arrived at its finding.
To me, it is very interesting that although the FTT said that together the operating agreement and section 18-503 of the Delaware Act meant that Mr Anson was entitled to the profits as they arose, it did not say what part each played in its decision. As section 18-503 has a default provision, you have to ask if this would have been enough for Mr Anson? Whatever the answer to this point is though, the huge question is whether the next FTT panel will make the same finding. I suspect not.
What do you know now that you wish you’d known at the start of your career?
How complex tax is, then I may have stuck with my original career of hotel and catering management. In all seriousness, the complexity has got more than a little out of hand, but I find taxation, especially international taxation, fascinating, as there is always something new to learn, and if you ever start making assumptions it bites you.
Are there any new rules that are causing a problem?
DAC 6 is a particular problem. I know from personal experience that writing guidance is horribly difficult (blame me for the double taxation relief chapter in the Bank Levy Manual), but the DAC 6 guidance is not detailed enough and it sometimes leaves you wondering what HMRC’s view is and whether you need to report a transaction. Although the Court of Appeal said in AozoraGMAC [2019] EWCA Civ 1643 that the opinion of an adviser is often as valid as HMRC’s, clients not unreasonably want the reassurance of knowing that our decision definitely agrees with HMRC’s view (full disclosure again: I had a passing involvement in Aozora GMAC).
Has a recent case has caught your eye?
I think the EU aspect of Fisher [2020] UKUT 62 (TCC) is very interesting. The extension of Mrs Fisher’s freedom of establishment to her husband, based partly on the same principle as that for groups of companies, seems fairly obvious now it’s been articulated. I’m very interested to see how that goes forward with the Court of Appeal (and possibly the Supreme Court), as it could have very wide application, and one that will not necessarily stop on the 31 December 2020 where a spouse is a national of a member state.
If you could make one change to a tax law or practice, what would it be?
Why not ask for the impossible: for politicians to stop grandstanding on tax issues. If they haven’t got anything sensible to say, they’d have to stay quiet. Or if the politician asks questions (to both business and HMRC), they’d have to both politely listen to the answers and acknowledge when their target makes a good point. They must not just ask bullying questions.
And finally, you might not know this about me but...
I was only supposed to work in tax for six weeks. My mum got me a job in October 1988 as a temporary revenue assistant at the Inland Revenue to ‘weed’ the self-employed files in Birmingham 6, which involved taking out any tax returns over six years’ old and put them in the storeroom. I found some de-mob returns from 1946/47, so that tells you how often the job was done.
I was then supposed to do a degree in hotel and catering management, but I enjoyed the atmosphere and camaraderie of my colleagues and the work too (once I was allowed out of the storeroom), so I ended up staying for nearly 30 years. I was ‘temporary’ in a true tax sense.
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