One minute with Ross Birkbeck, specialist tax barrister at Old Square Tax Chambers.
What’s keeping you busy at work?
A mixed bag as usual, but recently a lot of SDLT in particular. I have a couple of Upper Tribunal hearings concerning SDLT coming up, and have just finished a few. Clients also continue to struggle with questions about the availability of reliefs, both the general ones like MDR and the specialist provisions like FA 2003 ss 61 and 71. It’s interesting that what is one of the newest and shortest tax codes continues to create so many problems with interpretation and practical application.
If you could make one change to tax, what would it be?
I would merge national insurance with income tax. I really can’t see the point of keeping it separate (beyond the political incentive), and it adds a whole additional layer of complexity. Baffling. I hate being asked to advise on it too.
What do you know now that you wish you’d known at the start of your career?
A lot of tax law! But also perhaps that the world of tax, culturally, is much more relaxed and informal than I had imagined. Far from being stuffy (which was probably my impression), it is mostly full of intelligent and down to earth people just trying to figure stuff out.
Are there any new rules that are causing a problem?
I’m still unpicking a lot of loan charge related problems, mostly involving the changing landscape for settlement: there’s really very little certainty about how HMRC is treating historic remuneration trusts, and what they are prepared to accept if/when they are wound up. It leaves people very anxious about how to proceed.
Has a recent tax case caught your eye?
I am still fuming (on behalf of Rory Mullan KC, I guess) about the Hoey case ([2022] EWCA Civ 656), which gives HMRC such a wide power under ITEPA 2003 s 684(7A)(b) in regard to the operation of PAYE that employees will be looking over their shoulders for a long time, I suspect. It will be very interesting to see how much HMRC uses it. On the flip side, the case also contains a vital and entirely sound conclusion about the deductibility of payments where there is a tax avoidance motive. And there are some other bits in there too. It’s a very interesting and important decision.
What are you looking out for later this year?
High on my radar for the coming year is the backlog of domicile cases that will be unleashed now the procedural issue in Embiricos [2022] EWCA Civ 3 is finally decided. It will be very interesting to see how HMRC and the tribunal approach these, given that, despite apparent similarities, each very much turns on its facts, and the existing case law really gives us very little to go on.
Finally, you might not know this about me but...
I designed a piece of software called Casedo, because I found the existing tools for reading and analysing digital documents so frustrating. I now completely rely on it in my practice, and don’t know how anyone keeps on top of their papers without it. Sorry if that is too blatant a plug – but you should all try it!
One minute with Ross Birkbeck, specialist tax barrister at Old Square Tax Chambers.
What’s keeping you busy at work?
A mixed bag as usual, but recently a lot of SDLT in particular. I have a couple of Upper Tribunal hearings concerning SDLT coming up, and have just finished a few. Clients also continue to struggle with questions about the availability of reliefs, both the general ones like MDR and the specialist provisions like FA 2003 ss 61 and 71. It’s interesting that what is one of the newest and shortest tax codes continues to create so many problems with interpretation and practical application.
If you could make one change to tax, what would it be?
I would merge national insurance with income tax. I really can’t see the point of keeping it separate (beyond the political incentive), and it adds a whole additional layer of complexity. Baffling. I hate being asked to advise on it too.
What do you know now that you wish you’d known at the start of your career?
A lot of tax law! But also perhaps that the world of tax, culturally, is much more relaxed and informal than I had imagined. Far from being stuffy (which was probably my impression), it is mostly full of intelligent and down to earth people just trying to figure stuff out.
Are there any new rules that are causing a problem?
I’m still unpicking a lot of loan charge related problems, mostly involving the changing landscape for settlement: there’s really very little certainty about how HMRC is treating historic remuneration trusts, and what they are prepared to accept if/when they are wound up. It leaves people very anxious about how to proceed.
Has a recent tax case caught your eye?
I am still fuming (on behalf of Rory Mullan KC, I guess) about the Hoey case ([2022] EWCA Civ 656), which gives HMRC such a wide power under ITEPA 2003 s 684(7A)(b) in regard to the operation of PAYE that employees will be looking over their shoulders for a long time, I suspect. It will be very interesting to see how much HMRC uses it. On the flip side, the case also contains a vital and entirely sound conclusion about the deductibility of payments where there is a tax avoidance motive. And there are some other bits in there too. It’s a very interesting and important decision.
What are you looking out for later this year?
High on my radar for the coming year is the backlog of domicile cases that will be unleashed now the procedural issue in Embiricos [2022] EWCA Civ 3 is finally decided. It will be very interesting to see how HMRC and the tribunal approach these, given that, despite apparent similarities, each very much turns on its facts, and the existing case law really gives us very little to go on.
Finally, you might not know this about me but...
I designed a piece of software called Casedo, because I found the existing tools for reading and analysing digital documents so frustrating. I now completely rely on it in my practice, and don’t know how anyone keeps on top of their papers without it. Sorry if that is too blatant a plug – but you should all try it!
