You head the tax team at FSP. What sets the firm apart?
I could genuinely describe FSP as offering pragmatic and commercially minded lawyers, providing a holistic service; but everyone says this about their firm. What makes us different is the fundamental ethos that we take care of our clients and staff. Wherever we can, we promote within the firm and try to develop the skills of our existing staff instead of hiring in. This gives us good staff retention and a settled family feel, which translates to continuity for clients, who over time often become friends. Being able to offer a steady first point of contact is a big part of that process; as is having approachable lawyers with a sense of humour.
What recent tax development has caught your eye?
In truth, everything seems rather dwarfed by Brexit; even the racy world of tax, which is usually hard pressed to be dwarfed by anything. It will be interesting to see how the VAT position plays out on Brexit because there are so many parts of the UK legislation (as implemented from EU directives) that rely on an EU or non-EU country designation for the purposes of determining VAT treatment. In its simplest form, if we are no longer part of the EU, such designation will cease to exist and it will simply be UK supplies and ‘everywhere else’ supplies. Presumably Intrastat paperwork will go; but will it just end up being replaced by more paperwork of a different type, such as customs/duties paperwork?
Once the UK has exited Europe, will we see a gradual (or even possibly rapid) withdrawal from the increasing reliance that has been put on the use of the purposive method of statutory interpretation? As a common law system, the UK historically favoured a literal approach to interpretation, which was ideal for tax law and ensuring certainty. Most EU countries, on the other hand, operate a civil law system, which favours a purposive method of interpretation (i.e. what was the legislation meant to achieve, rather than what it actually says?) and is much less helpful in terms of certainty. As the UK devolved sovereignty to the EU, so it seemed that purposive interpretation was becoming more frequent; but was this the EU influence or the separate issue of an evolving moral stance as regards acceptable tax planning?
Are there any tax consultations of particular concern?
I would have to say the consultation on tackling offshore tax evasion and the requirement to correct. The title of the consultation would suggest its focus is limited to tax ‘evasion’; but will that be ‘evasion’ in the traditional sense of the word or will it apply to a wider (more ambiguous) category of avoidance acts? There is also the matter of whether HMRC’s powers of discovery and its ability to require information will need to be further extended to ensure effective implementation of whatever comes out of the consultation.
If you could make one change to UK tax law or practice what would it be?
I would like tax law to be certain and not impacted so dramatically by matters that are within HMRC’s discretion to interpret in any one of a number of ways.
One of the fundamental legal principles is that the law must be certain. As Lord Bingham said in The Rule of Law (Allen Lane, 2010): ‘the law must be accessible and so far as possible, intelligible, clear and predictable… Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion.’ There was no footnote or additional text that said ‘except for the law of taxation’. I realise that this is unachievable since tax practice has evolved into its current ‘flexible’ state because of the manipulations by taxpayers over the decades; but it would be helpful if there were clear guidelines limiting or defining the scope of HMRC’s discretion to interpret facts or deem the existence of a particular intention.
You head the tax team at FSP. What sets the firm apart?
I could genuinely describe FSP as offering pragmatic and commercially minded lawyers, providing a holistic service; but everyone says this about their firm. What makes us different is the fundamental ethos that we take care of our clients and staff. Wherever we can, we promote within the firm and try to develop the skills of our existing staff instead of hiring in. This gives us good staff retention and a settled family feel, which translates to continuity for clients, who over time often become friends. Being able to offer a steady first point of contact is a big part of that process; as is having approachable lawyers with a sense of humour.
What recent tax development has caught your eye?
In truth, everything seems rather dwarfed by Brexit; even the racy world of tax, which is usually hard pressed to be dwarfed by anything. It will be interesting to see how the VAT position plays out on Brexit because there are so many parts of the UK legislation (as implemented from EU directives) that rely on an EU or non-EU country designation for the purposes of determining VAT treatment. In its simplest form, if we are no longer part of the EU, such designation will cease to exist and it will simply be UK supplies and ‘everywhere else’ supplies. Presumably Intrastat paperwork will go; but will it just end up being replaced by more paperwork of a different type, such as customs/duties paperwork?
Once the UK has exited Europe, will we see a gradual (or even possibly rapid) withdrawal from the increasing reliance that has been put on the use of the purposive method of statutory interpretation? As a common law system, the UK historically favoured a literal approach to interpretation, which was ideal for tax law and ensuring certainty. Most EU countries, on the other hand, operate a civil law system, which favours a purposive method of interpretation (i.e. what was the legislation meant to achieve, rather than what it actually says?) and is much less helpful in terms of certainty. As the UK devolved sovereignty to the EU, so it seemed that purposive interpretation was becoming more frequent; but was this the EU influence or the separate issue of an evolving moral stance as regards acceptable tax planning?
Are there any tax consultations of particular concern?
I would have to say the consultation on tackling offshore tax evasion and the requirement to correct. The title of the consultation would suggest its focus is limited to tax ‘evasion’; but will that be ‘evasion’ in the traditional sense of the word or will it apply to a wider (more ambiguous) category of avoidance acts? There is also the matter of whether HMRC’s powers of discovery and its ability to require information will need to be further extended to ensure effective implementation of whatever comes out of the consultation.
If you could make one change to UK tax law or practice what would it be?
I would like tax law to be certain and not impacted so dramatically by matters that are within HMRC’s discretion to interpret in any one of a number of ways.
One of the fundamental legal principles is that the law must be certain. As Lord Bingham said in The Rule of Law (Allen Lane, 2010): ‘the law must be accessible and so far as possible, intelligible, clear and predictable… Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion.’ There was no footnote or additional text that said ‘except for the law of taxation’. I realise that this is unachievable since tax practice has evolved into its current ‘flexible’ state because of the manipulations by taxpayers over the decades; but it would be helpful if there were clear guidelines limiting or defining the scope of HMRC’s discretion to interpret facts or deem the existence of a particular intention.
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