One minute with Nick Skerrett, head of the contentious tax practice at Simmons & Simmons.
What are you working on at the moment?
A very diverse and engaging caseload! Everything from the correct accounting treatment of IP transfers, international enforcement and MARD, pensions liberation, VAT and fund management and lots of landfill tax disputes. This is something I love about my job; no two cases are ever the same and the sheer range and technical complexity of the work keeps you on your toes.
What new measures have caught your eye?
The criminal offence for the facilitation of tax evasion and the range of new measures targeting, amongst other things, enablers of avoidance and disclosure of offshore structures. This is an intriguing development in the enforcement environment to shift the focus away from the taxpayer to the ecosystem of companies and professionals that provide the wherewithal for the evasion and avoidance of tax. The facilitation offence is wider reaching than many would expect. The inclusion of foreign tax evasion offences is the obvious point, but there are all sorts of other unanticipated issues such as compliance in the procurement/supply chain that need to be considered.
I am also concerned by the proposed sanctions for enablers of tax avoidance. This concerns me at two levels. It has the potential to undermine the ability of taxpayers to obtain proper representation and legal advice which could have an unwelcome bearing on the ability of taxpayers to enforce their legal rights. It is also potentially indicative of a shift in the focus of enforcement architecture from tax evasion to tax avoidance that could have some unwelcome consequences should it become a trend.
You have many years’ experience in tax litigation. Is there anything you know now that you wish you’d known at the start of your career?
That the image of tax as a profession, and the stigma that used to attach to it, would change so dramatically. When I first started out people would roll their eyes and dismiss you as a boring nerd. One thing the increased publicity of tax issues has done is to shift that perception. It is amazing how many young people coming into the law now actively want a training seat in tax and are interested in qualifying into tax.
If you could make one change to UK tax law or practice what would it be?
The adoption of a properly independent and effective review stage to provide a check and balance on HMRC’s conduct before matters go to litigation. The focus is always on bad behaviour by taxpayers, but equally there are many cases of poor behaviour by HMRC. Individuals do not always have the understanding, resources or capacity to challenge HMRC and it is not right to expect such people to go through an appeal process without an independent set of eyes looking at the issue, particularly where the remedy for the individual lies in public law and the amounts are small. You cannot expect people to launch judicial review proceedings in such cases. There needs to be a better oversight on HMRC as a public body.
What are you looking out for in 2017?
I am intrigued by how the Supreme Court will approach the issue of sanctions for procedural non-compliance by HMRC in the BPP litigation. As a purely personal view, I have for many years felt that HMRC has at times benefited from a more relaxed approach to compliance that can prejudice taxpayers’ interests in pursuing litigation without unreasonable delay. The markers put down by the Court of Appeal on how it saw the issue have good potential to improve the conduct of tax litigation for all parties, so it will be interesting to see where we end up.
How do you think the tax profession has been affected by recent coverage of tax disputes?
The image of the profession has undeniably been tarnished by the actions of a fringe of promoters, individuals and corporates who have behaved in a way that was out of step with the public mood. To a degree, this was an inevitable consequence of the lack of effective regulation of the tax industry (not all of which fits the term profession). The profession needs to regain public trust by leading the debate on proper standards of practice and professional regulation. If the profession does not seize this challenge we are in danger of seeing a slide where not only the boundary of tax evasion and tax avoidance is further blurred, but there are increased attempts by HMRC to paint differences of interpretation as boundary pushing, depicted as a subset of tax avoidance, to create an environment wherein the court of public opinion dissuades taxpayers from exercising their rights and undermining our democratic legal process.
Finally, you might not know this about me but …
I’m from Devon but love rugby league and am a passionate St Helens RLFC supporter. I know that is two things, but they are connected as everyone always assumes I am from the north when I am not (although my family does have northern roots). Now you know.
One minute with Nick Skerrett, head of the contentious tax practice at Simmons & Simmons.
What are you working on at the moment?
A very diverse and engaging caseload! Everything from the correct accounting treatment of IP transfers, international enforcement and MARD, pensions liberation, VAT and fund management and lots of landfill tax disputes. This is something I love about my job; no two cases are ever the same and the sheer range and technical complexity of the work keeps you on your toes.
What new measures have caught your eye?
The criminal offence for the facilitation of tax evasion and the range of new measures targeting, amongst other things, enablers of avoidance and disclosure of offshore structures. This is an intriguing development in the enforcement environment to shift the focus away from the taxpayer to the ecosystem of companies and professionals that provide the wherewithal for the evasion and avoidance of tax. The facilitation offence is wider reaching than many would expect. The inclusion of foreign tax evasion offences is the obvious point, but there are all sorts of other unanticipated issues such as compliance in the procurement/supply chain that need to be considered.
I am also concerned by the proposed sanctions for enablers of tax avoidance. This concerns me at two levels. It has the potential to undermine the ability of taxpayers to obtain proper representation and legal advice which could have an unwelcome bearing on the ability of taxpayers to enforce their legal rights. It is also potentially indicative of a shift in the focus of enforcement architecture from tax evasion to tax avoidance that could have some unwelcome consequences should it become a trend.
You have many years’ experience in tax litigation. Is there anything you know now that you wish you’d known at the start of your career?
That the image of tax as a profession, and the stigma that used to attach to it, would change so dramatically. When I first started out people would roll their eyes and dismiss you as a boring nerd. One thing the increased publicity of tax issues has done is to shift that perception. It is amazing how many young people coming into the law now actively want a training seat in tax and are interested in qualifying into tax.
If you could make one change to UK tax law or practice what would it be?
The adoption of a properly independent and effective review stage to provide a check and balance on HMRC’s conduct before matters go to litigation. The focus is always on bad behaviour by taxpayers, but equally there are many cases of poor behaviour by HMRC. Individuals do not always have the understanding, resources or capacity to challenge HMRC and it is not right to expect such people to go through an appeal process without an independent set of eyes looking at the issue, particularly where the remedy for the individual lies in public law and the amounts are small. You cannot expect people to launch judicial review proceedings in such cases. There needs to be a better oversight on HMRC as a public body.
What are you looking out for in 2017?
I am intrigued by how the Supreme Court will approach the issue of sanctions for procedural non-compliance by HMRC in the BPP litigation. As a purely personal view, I have for many years felt that HMRC has at times benefited from a more relaxed approach to compliance that can prejudice taxpayers’ interests in pursuing litigation without unreasonable delay. The markers put down by the Court of Appeal on how it saw the issue have good potential to improve the conduct of tax litigation for all parties, so it will be interesting to see where we end up.
How do you think the tax profession has been affected by recent coverage of tax disputes?
The image of the profession has undeniably been tarnished by the actions of a fringe of promoters, individuals and corporates who have behaved in a way that was out of step with the public mood. To a degree, this was an inevitable consequence of the lack of effective regulation of the tax industry (not all of which fits the term profession). The profession needs to regain public trust by leading the debate on proper standards of practice and professional regulation. If the profession does not seize this challenge we are in danger of seeing a slide where not only the boundary of tax evasion and tax avoidance is further blurred, but there are increased attempts by HMRC to paint differences of interpretation as boundary pushing, depicted as a subset of tax avoidance, to create an environment wherein the court of public opinion dissuades taxpayers from exercising their rights and undermining our democratic legal process.
Finally, you might not know this about me but …
I’m from Devon but love rugby league and am a passionate St Helens RLFC supporter. I know that is two things, but they are connected as everyone always assumes I am from the north when I am not (although my family does have northern roots). Now you know.
