Managing tax disputes: What the non-tax-lawyers need to know

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1 Managing tax disputes: What the non-tax-lawyers need to know

2 So, what is a tax dispute? A difference between HMRC and taxpayers over what is the right amount of tax due or when the tax is due Interpretation of tax law Structured tax planning Tax evasion and fraud Valuation type disputes Protective tax claims Disputed assessments Identity of taxpayer 1 / B_LIVE_EMEA1: v1

3 So, what is a tax dispute? Not to mention whether HMRC has behaved properly, or lawfully Public law issues State aid EU law disputes And commercial disputes over entitlement to tax reclaims and legality of tax levies. 2 / B_LIVE_EMEA1: v1

4 When should you treat a tax matter as contentious? Before it reaches dispute phase. Do not wait until it gets to an appeal being filed. Need to adopt a dispute strategy at an early stage. Why? Document creation, correspondence, privilege, reputational/ethical impact, media assessment 3 / B_LIVE_EMEA1: v1

5 Potential forums (in England & Wales): First-tier Tribunal (Tax Chamber) Upper Tribunal (Tax and Chancery) High Court (Tax & EU restitution claims, commercial claim) Court of Appeal/Supreme Court Court of Justice of the European Union Administrative Court NB plus civil enforcement/dispute resolution channels, ADR 4 / B_LIVE_EMEA1: v1

6 Potential forums (in Germany): Appeal department of tax office Lower tax court (Finanzgericht) Federal Tax Court (Bundesfinanzhof) Court of Justice of the European Union 5 / B_LIVE_EMEA1: v1

7 Issues at the outset: What is being challenged? What is the nature of the claim? Which court has jurisdiction? Conflict between public law and tax law What are the time limits? Which procedural rules? 6 / B_LIVE_EMEA1: v1

8 What is best strategy to resolve the dispute, considering: Impact on relationship with tax authority Impact on other tax positions Publicity, impact on stakeholders Potential prospects of success Ability to retain proceeds Likely duration and costs Tax authority s anticipated behaviour 7 / B_LIVE_EMEA1: v1

9 How does tax litigation differ from commercial litigation? Litigation against a government department Public law obligations Political agenda Public scrutiny and challenge Impact on wider body of taxpayers Personal, emotional behaviours Resourcing decisions Procedural compliance (Lack of) individual responsibility 8 / B_LIVE_EMEA1: v1

10 Practical differences Tribunal procedure typically lighter touch, but changing post -Mitchell Lower volume of documents Typically technical legal disputes rather than factual Less reliance on witnesses Public forum, but appeal notices/grounds not obtainable Substitution of case arguments at late stages Costs regime Lay members 9 / B_LIVE_EMEA1: v1

11 HMRC Litigation and Settlement Strategy Sets out where HMRC will settle disputes and where it will litigate Not purely merit based wider importance, need for clarity on interpretation, test legislation, policy reasons Referrals to Tax Dispute Resolution Board Trials of Alternative Dispute Resolution 10 / B_LIVE_EMEA1: v1

12 German Tax Administration Litigation and Settlement Strategy Settlement only about facts, not about legal questions Shift towards litigation Long procedures 11 / B_LIVE_EMEA1: v1

13 Media, public interest and stakeholders Political and media scrutiny increased public awareness and understanding Parliamentary Accounts Committee HMRC leaks UK Uncut Goldman Sachs JR Social media campaigns Published Tax Contribution Statements/Tax Risk Management Policies 12 / B_LIVE_EMEA1: v1

14 Disclosure and information requests Soft enquiries vs formal demands handle with care! Taxpayers general duty to assist HMRC enquiries, statutory information requirements, no compulsion but risk of inflaming situation. Taxpayer and third party notices under Schedule 36 FA 2008 Right of appeal against information notice unless approved by Tribunal prior to service. Extra requirements for third party notice approvals. Areas of challenge reasonably required, possession or power. NB also "relevant foreign tax" 13 / B_LIVE_EMEA1: v1

15 Privilege There are two types of legal professional privilege: Legal advice privilege - lawyer/client communications in context of seeking or giving legal advice; and Litigation privilege lawyer/client/third party communications for the dominant purpose of being used in connection with actual or pending litigation. Difficult areas, e.g. the status of internal s, repetition of advice by nonlawyers, wider distribution, accountants advice. No legal advice privilege for accountants or tax advisers, even if giving advice on legal matters: R (Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1 Beware accountants claiming litigation privilege. 14 / B_LIVE_EMEA1: v1

16 Mitchell & the Tax Tribunals Historically, procedural compliance lighter touch in Tax Tribunal Gradual hardening post 2008 Tribunal reforms McCarthy & Stone UT embraces Mitchell approach Leeds City Council UT takes a softer stance BPP FTT makes and upholds barring order BPP UT appeal relevance of Denton? 15 / B_LIVE_EMEA1: v1

17 Simmons & Simmons navigator Complex regulation made easy Our cost effective online subscription service provides 250+ organisations with key regulatory information for carrying out cross-border financial services business Services: Corporate finance Derivatives Funds Securities Share disclosure Coming soon: investment and product tax Visit our navigator stand today for a demo Located on the mezzanine level Contact 16 / B_LIVE_EMEA1: v1

18 simmons-simmons.com elexica.com This document is for general guidance only. It does not contain definitive advice. SIMMONS & SIMMONS and S&S are registered trade marks of Simmons & Simmons LLP. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated practices. Accordingly, references to Simmons & Simmons mean Simmons & Simmons LLP and the other partnerships and other entities or practices authorised to use the name Simmons & Simmons or one or more of those practices as the context requires. The word partner refers to a member of Simmons & Simmons LLP or an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Simmons & Simmons LLP s affiliated practices. For further information on the international entities and practices, refer to simmonssimmons.com/legalresp. Simmons & Simmons LLP is a limited liability partnership registered in England & Wales with number OC and with its registered office at CityPoint, One Ropemaker Street, London EC2Y 9SS. It is authorised and regulated by the Solicitors Regulation Authority. A list of members and other partners together with their professional qualifications is available for inspection at the above address. 17 / B_LIVE_EMEA1: v1

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