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One minute with... Sam Grodzinski QC

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What’s keeping you busy at work?

Contrary to its sometimes dry image, I think tax litigation is hugely varied and interesting. Disputes about transfer pricing and diverted profits tax, which currently happen to form a large part of my in-tray, mean getting to grips with the economics of global groups, whether gaming, tech companies or commodities.

From the sublime to the ridiculous, my next hearing is in the Court of Appeal in March about landfill tax liability, on what my kids insist on calling ‘bottom fluff’ (essentially a protective layer lining the bottom, sides and top of landfill cells).

At the same time, working out the consequences of Brexit on indirect taxes based on EU Directives (VAT, excise duty etc.) and other taxes which may be contrary to EU law is proving to be fascinating, and we are only in the foothills.

And finally (if permission to appeal to the Supreme Court is granted), a dispute about corporate tax residence will be keeping me busy in a few months’ time.

What advice would you give to someone starting their your career in tax?

There is no single way in to starting a career in tax law (see the answer to my final question below). But if you want to be a litigator, not just an adviser, there is a lot to be said for getting experience in a wide range of courts and tribunals in disputes that have nothing to do with tax. Doing a difficult case yourself in the magistrates court, or in a county court road traffic dispute, can teach you as much about the art of cross examination and how to make your submissions succinctly, than sitting behind a leader in a multi-million pound tax appeal.

Has a recent case has caught your eye?

The recent Supreme Court decision in the long running FII saga ([2020] UKSC 47) has re-written the book on time limits for restitution claims based on mistake of law. This is going to have a big impact on a wide range of GLO litigation. Working out when a company could first have ‘discovered’ that it had a ‘worthwhile’ claim (whatever that means) to challenge primary UK tax legislation, by reading the runes in the CJEU caselaw, is going to be a real challenge, and I suspect that there are several more rounds of appeal to go through before the implications of the Supreme Court’s latest majority judgment are fully resolved.

What changes to tax law or practice what would be top of your list?

Apart from the (obvious) need to simplify the UK tax code, I would strengthen the law on legitimate expectation, so that taxpayers can feel confident that HMRC is required to stick to its published guidance. Tax legislation is so complex nowadays, people naturally look to guidance on HMRC’s website for a reliable explanation of how HMRC will act. But often, when a dispute arises, taxpayers face the problem that the guidance is said to be qualified or even ultra vires, or that resiling from the guidance is justified because of HMRC’s duty to collect tax, and that any unfairness is not so extreme as to be unlawful. Those points need to be rigorously tested to ensure a fair and level playing field.

What made you become a tax barrister?

It happened entirely by accident. I was leaving chambers one Friday evening as a very junior barrister, having recently been put on the attorney general’s panel of counsel. Most of my government work at the time related to immigration, asylum and prisoner’s rights. As I was walking out, my (rather fearsome) senior clerk said: ‘Her Majesty’s Customs and Excise need to you to go to Great Yarmouth on Monday morning to do a VAT tribunal’. I said I didn’t know anything about VAT, to which he replied: ‘You will by Monday morning’. I duly pitched up in Great Yarmouth on the Monday, where I was given an excellent education in VAT by the eminent Theodore Wallace, who was the tribunal chair. The fact that I won the appeal had nothing to do with me, but it gave me a taste for tax nonetheless, and it’s been downhill from there.

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