One minute with Joshua Carey, barrister at Devereux Chambers.
What’s keeping you busy at work?
At the moment I have a large number of matters that I’m advising and litigating for taxpayers. The spectrum of that work is wide and includes customs duties on import, personal liability notices following CT assessments, VAT assessments for supply of services between closely related companies, landfill tax disputes and questions about whether earnings are from the employment.
If you could make one change to tax law or practice, what would it be?
There are plenty of changes there could be to both tax law, and practice. However, in my experience one area that continues to render significant hardship on taxpayers is the Revenue’s ability to deregister a trader from VAT on the basis that it is abusing its VAT registration number (VRN). Presently there is no legislative power to temporarily permit the trader to continue trading while an urgent appeal is heard in the First-tier Tribunal.
Furthermore, the High Court continues to reject applications for injunctive relief to return VRNs and so ‘would be appellants’ cannot effectively challenge decisions before the FTT because even expedited hearings take months to prepare for and list all the while the taxpayer cannot trade without the possibility of committing a criminal offence. Even if a VRN is returned, there is very little scope to recover any money by way of a damages claim for erroneous decision making. Perhaps a leaf should be taken from the temporary approval books in the alcohol approval sphere following the Supreme Court’s criticism in OWD Ltd t/a Birmingham Cash and Carry & another v HMRC [2019] STC 1402.
What do you know now that you wish you’d known at the start of your career?
Familiarity with the relevant procedural rules for the court or tribunal you are working in. At the beginning of my career whilst aware of the rules generally (in Queensland where I started my career, the uniform civil procedure rules), I do not think I recognised just how many disputes could be anticipated and resolved through a thorough understanding of them. These days I have a well-worn copy of the rules to hand, with a very good understanding of the case law that sits around them. Indeed, I have now appeared in a number of the leading decisions about their interpretation.
Has a recent tax case caught your eye?
Whilst not strictly a tax case, Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442 is well worth a read (and it was heard by the Supreme Court on 21 and 22 June 2023). Griffiths was applied by the Upper Tribunal in Harrison v HMRC [2022] UKUT 216 (TCC) where it was held that evidence which had not been challenged in cross-examination could still be subject to adverse comment and adversely relied upon by the FTT. If correct, this represents a significant departure from the rule that a witness should be given an opportunity to comment before adverse comment is made about their evidence. Essentially, the UT appears to have opened the door, by reference to Griffiths, to avoiding cross-examining on difficult issues, but then still permitting the party to adversely criticise the unchallenged evidence.
The Supreme Court’s future decision in Griffiths on this point is likely to be important to all litigators before the FTT.
And finally, you might not know this about me but...
In addition to reading tax decisions on a Saturday morning, as if they were the weekend newspaper, I am obsessed with trying different restaurants with friends in and around London with a particular emphasis (like every good Australian) on brunch. I also thoroughly enjoy a night out at the theatre which allows me to remember my pre-tax enlightenment days where I started studying a Bachelor of Music at the University of Queensland, majoring on voice, and having appeared in Les Miserable as Jean Valjean.
One minute with Joshua Carey, barrister at Devereux Chambers.
What’s keeping you busy at work?
At the moment I have a large number of matters that I’m advising and litigating for taxpayers. The spectrum of that work is wide and includes customs duties on import, personal liability notices following CT assessments, VAT assessments for supply of services between closely related companies, landfill tax disputes and questions about whether earnings are from the employment.
If you could make one change to tax law or practice, what would it be?
There are plenty of changes there could be to both tax law, and practice. However, in my experience one area that continues to render significant hardship on taxpayers is the Revenue’s ability to deregister a trader from VAT on the basis that it is abusing its VAT registration number (VRN). Presently there is no legislative power to temporarily permit the trader to continue trading while an urgent appeal is heard in the First-tier Tribunal.
Furthermore, the High Court continues to reject applications for injunctive relief to return VRNs and so ‘would be appellants’ cannot effectively challenge decisions before the FTT because even expedited hearings take months to prepare for and list all the while the taxpayer cannot trade without the possibility of committing a criminal offence. Even if a VRN is returned, there is very little scope to recover any money by way of a damages claim for erroneous decision making. Perhaps a leaf should be taken from the temporary approval books in the alcohol approval sphere following the Supreme Court’s criticism in OWD Ltd t/a Birmingham Cash and Carry & another v HMRC [2019] STC 1402.
What do you know now that you wish you’d known at the start of your career?
Familiarity with the relevant procedural rules for the court or tribunal you are working in. At the beginning of my career whilst aware of the rules generally (in Queensland where I started my career, the uniform civil procedure rules), I do not think I recognised just how many disputes could be anticipated and resolved through a thorough understanding of them. These days I have a well-worn copy of the rules to hand, with a very good understanding of the case law that sits around them. Indeed, I have now appeared in a number of the leading decisions about their interpretation.
Has a recent tax case caught your eye?
Whilst not strictly a tax case, Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442 is well worth a read (and it was heard by the Supreme Court on 21 and 22 June 2023). Griffiths was applied by the Upper Tribunal in Harrison v HMRC [2022] UKUT 216 (TCC) where it was held that evidence which had not been challenged in cross-examination could still be subject to adverse comment and adversely relied upon by the FTT. If correct, this represents a significant departure from the rule that a witness should be given an opportunity to comment before adverse comment is made about their evidence. Essentially, the UT appears to have opened the door, by reference to Griffiths, to avoiding cross-examining on difficult issues, but then still permitting the party to adversely criticise the unchallenged evidence.
The Supreme Court’s future decision in Griffiths on this point is likely to be important to all litigators before the FTT.
And finally, you might not know this about me but...
In addition to reading tax decisions on a Saturday morning, as if they were the weekend newspaper, I am obsessed with trying different restaurants with friends in and around London with a particular emphasis (like every good Australian) on brunch. I also thoroughly enjoy a night out at the theatre which allows me to remember my pre-tax enlightenment days where I started studying a Bachelor of Music at the University of Queensland, majoring on voice, and having appeared in Les Miserable as Jean Valjean.
