One minute with Aparna Nathan KC, barrister at Devereux Chambers.
What’s keeping you busy at work?
My work at the moment is a good mix of advisory work (concerning mixed member partnerships legislation, domicile, residence, planning involving offshore trusts and companies) and litigation (concerning the transfer of assets provisions, EIS relief, personal liability notices and tax related judicial reviews). This mix of litigation and advisory work gives me an invaluable perspective when determining how to frame arguments effectively in litigation and in identifying and minimising risks in my advisory practice.
If you could make one change to a tax law or practice, what would it be?
Tax legislation has grown so significantly over the decades that I have been in practice, mainly, it seems, to include anti-avoidance provisions. I recognise that where there is a tax there may also be a desire to mitigate that tax or where there is a relief, there may be a desire to maximise that relief.
However, given the modern approach to statutory interpretation (‘the Ramsay principle’) restated in BMBF v Mawson [2004] UKHL 51, UBS v HMRC [2016] UKSC 13 and Hurstwood Properties (A) Ltd v Rossendale BC [2021] UKSC 16, I wonder whether the proliferation of anti-avoidance provisions is in fact necessary or indeed helpful. It occurs to me that the GAAR could be put to greater use than it is at present in order to address emerging schemes at the bold end of the spectrum and that the modern approach to statutory construction could be deployed to greater effect in challenging both bespoke planning as well as widely marketed avoidance arrangements.
What do you know now that you wish you’d known at the start of your career?
Being appointed onto the Attorney General’s Panel of Civil Counsel was hugely helpful in building up valuable litigation experience with high quality instructions and interesting tax issues. I strongly urge junior barristers to apply at an early stage in their career.
Has a recent tax case caught your eye?
The domicile case of Shah v HMRC [2023] UKFTT 539 concerned a long-term UK resident individual who claimed to have retained his foreign (Indian) domicile of origin. This case is of wide relevance given the number of long-term UK residents with a foreign domicile of origin who may well be in a similar position to the taxpayer in that case. It is, in my view, helpful in highlighting the factors to which a tribunal will attach weight when determining whether a long-term UK resident has indeed retained his foreign domicile of origin.
What are clients increasingly asking about at the moment?
I have seen a significant increase in work relating to the mixed member partnerships provisions (due I suspect to my role in Walewski v HMRC [2021] UKUT 133, being the first piece of litigation on these provisions). The increase in instructions indicates that there are a large number of challenges being made to LLP profit allocations based on these provisions and that there is a strong appetite to resist such challenges given that these provisions can apply to wholly commercial situations.
Finally, you might not know this about me but...
I am learning South Indian classical music (vocal) as a way not only to connect more deeply with my Indian roots but also as a way to relax.
Italy is one of my favourite places to spend time. And to make the most of the time I spend in Italy, I have been learning Italian.
I enjoy reading Victorian literature, in particular Anthony Trollope. I love the insights into London political and social life that his books give – the Palliser novels, Orley Farm and The Way We Live Now being my favourites. I also love the humour of the Barchester series.
One minute with Aparna Nathan KC, barrister at Devereux Chambers.
What’s keeping you busy at work?
My work at the moment is a good mix of advisory work (concerning mixed member partnerships legislation, domicile, residence, planning involving offshore trusts and companies) and litigation (concerning the transfer of assets provisions, EIS relief, personal liability notices and tax related judicial reviews). This mix of litigation and advisory work gives me an invaluable perspective when determining how to frame arguments effectively in litigation and in identifying and minimising risks in my advisory practice.
If you could make one change to a tax law or practice, what would it be?
Tax legislation has grown so significantly over the decades that I have been in practice, mainly, it seems, to include anti-avoidance provisions. I recognise that where there is a tax there may also be a desire to mitigate that tax or where there is a relief, there may be a desire to maximise that relief.
However, given the modern approach to statutory interpretation (‘the Ramsay principle’) restated in BMBF v Mawson [2004] UKHL 51, UBS v HMRC [2016] UKSC 13 and Hurstwood Properties (A) Ltd v Rossendale BC [2021] UKSC 16, I wonder whether the proliferation of anti-avoidance provisions is in fact necessary or indeed helpful. It occurs to me that the GAAR could be put to greater use than it is at present in order to address emerging schemes at the bold end of the spectrum and that the modern approach to statutory construction could be deployed to greater effect in challenging both bespoke planning as well as widely marketed avoidance arrangements.
What do you know now that you wish you’d known at the start of your career?
Being appointed onto the Attorney General’s Panel of Civil Counsel was hugely helpful in building up valuable litigation experience with high quality instructions and interesting tax issues. I strongly urge junior barristers to apply at an early stage in their career.
Has a recent tax case caught your eye?
The domicile case of Shah v HMRC [2023] UKFTT 539 concerned a long-term UK resident individual who claimed to have retained his foreign (Indian) domicile of origin. This case is of wide relevance given the number of long-term UK residents with a foreign domicile of origin who may well be in a similar position to the taxpayer in that case. It is, in my view, helpful in highlighting the factors to which a tribunal will attach weight when determining whether a long-term UK resident has indeed retained his foreign domicile of origin.
What are clients increasingly asking about at the moment?
I have seen a significant increase in work relating to the mixed member partnerships provisions (due I suspect to my role in Walewski v HMRC [2021] UKUT 133, being the first piece of litigation on these provisions). The increase in instructions indicates that there are a large number of challenges being made to LLP profit allocations based on these provisions and that there is a strong appetite to resist such challenges given that these provisions can apply to wholly commercial situations.
Finally, you might not know this about me but...
I am learning South Indian classical music (vocal) as a way not only to connect more deeply with my Indian roots but also as a way to relax.
Italy is one of my favourite places to spend time. And to make the most of the time I spend in Italy, I have been learning Italian.
I enjoy reading Victorian literature, in particular Anthony Trollope. I love the insights into London political and social life that his books give – the Palliser novels, Orley Farm and The Way We Live Now being my favourites. I also love the humour of the Barchester series.
