Tax Disputes Practice

Transcription

1 Tax Disputes Practice

2 Introduction We have highly-regarded and well-established Tax Disputes practice and have acted in many of the leading tax disputes. We are able to draw on the skills of leading practitioners with depth of experience in Tax and Dispute Resolution to enable us successfully to represent clients at all stages of tax-related disputes. This brochure provides an overview of our Tax Disputes practice, together with details of our tax dispute experience and biographies of our partners that specialise in tax disputes. Contents 4 Our Tax Disputes practice 6 Tax Disputes Our Experience 8 Profiles Picture by Jerry Goulet, Technology, Slaughter and May 2 Tax Disputes Practice /

3 They re able to master the subject matter they re looking at in any given case. They are always on top of everything. If you have a case you want to win, I would say go with them. Chambers UK, 2017 / Tax Disputes Practice 3

4 Our Tax Disputes practice Our Tax practice We have a highly experienced group of eight partners and around twenty other specialist lawyers who deal with the tax aspects of the full range of corporate, commercial and financial transactions. In addition to our tax disputes work, members of the Tax practice are involved both in structuring transactions and advising on the documentation to implement transactions. We are also frequently asked to provide standalone tax consultancy services. Our Dispute Resolution practice Our Dispute Resolution group has an outstanding international reputation, acting for a broad spectrum of clients, particularly in the corporate and financial sectors. Our clients also include governments and international organisations. We handle the full range of domestic and crossborder litigation, domestic and international arbitrations (involving both English and foreign law), regulatory investigations and inquiries work and mediations. Our experience handling cross-border, multi-jurisdictional disputes also means that we are increasingly asked to manage overseas disputes and enquiries for our clients, including those which have no connection with England. Our Tax Disputes practice Specialists from our Tax and Dispute Resolution groups work closely together on contentious tax matters, creating a formidable, integrated team of experts able to deal with all aspects of the case innovatively, seamlessly and efficiently. We represent clients in a wide range of disputes with Her Majesty s Revenue and Customs (HMRC) from the investigation stage right through to proceedings before the tax tribunals and the courts. Our success rate for the taxpayer in recent years has been outstanding, reflecting careful consideration of the merits before any steps towards litigation are undertaken and a close attention to important detail in the preparation and active phases of the case. However, most tax disputes do not result in litigation. Many enquiries with HMRC arise due to a misunderstanding of the facts, or can be resolved in early negotiations. We frequently advise in this area, and also on the focused in-depth intervention processes to try to resolve a number of disputes with HMRC on an accelerated timescale. Our broad tax experience is particularly suited to this type of advice, including reviewing the strength of the taxpayer s position on the issues under dispute, presenting the arguments and negotiating an acceptable confidential settlement with HMRC. Peers are full of praise for this outstanding team, which has a fantastic track record in this field. Chambers UK, Tax Disputes Practice /

5 A client-focused and commercially aware approach Central to our approach is the provision of a clientfocused service. This is based on understanding and assisting clients to achieve their objectives in an efficient and effective manner. Our clients look to us for technical excellence in the law, commercial awareness and a capacity for innovative thought. Together, these qualities give us an edge, enable us to achieve our clients legal and strategic objectives, and ensure the effective handling and resolution of disputes, together with related reputational issues. We believe that personal relationships are fundamental to the provision of legal services as it is from these relationships that a genuine partnership between client and legal adviser is formed. Accordingly, for each dispute, we take great care to assemble a legal team designed to meet the client s business objectives and priorities. For each dispute, we: provide a bespoke team of tax and dispute resolution specialists, ensuring that the client has the right mix of people at the right time; appoint a dedicated client relationship partner to manage the relationship; and ensure that each member of the team is, where appropriate, aware of all work being performed on the matter so that our service is seamless and cost-effective. Each team is led by one or more partners drawn from our Tax or Dispute Resolution groups, each of whom is actively involved in and takes direct responsibility for the advice and service provided. We liaise regularly with our clients, discussing strategy, progress, and the legal and practical issues as they arise. We believe that it is this close attention to detail and our clients needs which enables us to achieve successful, cost-effective outcomes for our clients. Peers see this as a good quality team and endorse its ability to handle the most complex matters with ease. Chambers UK, 2013 / Tax Disputes Practice 5

6 tional Tax Disputes our experience Highlights include advising: Nationwide in relation to a substantial dispute with HMRC regarding the tax treatment of a structured finance transaction; the First-tier and Upper Tribunals and the Court of Appeal all found in Nationwide s favour on all accounts. The Court of Appeal decision is an important one: in addition to looking at the nature of a dividend for tax purposes, it has precedent value for a number of other ongoing disputes between various corporates and HMRC relating to tax planning involving the payment of dividends, and also raises interesting issues more generally which potentially have far-reaching consequences for the tax treatment of dividends Deutsche Morgan Grenfell and Sempra Metals Limited in the widely-reported successful test cases brought under the Advance Corporation Tax Group Litigation Order challenging the applicable limitation period for claims made in respect of mistake of law and establishing that compound interest should be awarded as compensation for the wrongful payments of ACT; the landmark House of Lords decisions in these cases had implications far beyond the tax field Bank of Ireland Britain Holdings in relation to a major corporation tax dispute with HMRC; the Special Commissioners, the High Court and the Court of Appeal all held in favour of the Bank of Ireland, providing important clarification on the tax treatment of tri-partite repos Talisman Energy in relation to its successful appeal to the First-tier Tribunal in respect of allowances against Petroleum Revenue Tax arising from expenditure incurred in the winning of oil in the North Sea Reed: on appeals against HMRC tax assessments for allegedly unpaid income tax and national insurance contributions as well as in relation to connected judicial review proceedings; in addition to breaking new procedural ground, this case addresses several key substantive issues including the effect in law of HMRC s regime on dispensations on claims for over-accounted VAT during a period of many years in respect of the supply of temporary workers. Ford of Europe Inc in respect of a claim for the return of over 76 million paid in corporation tax: the First-tier and Upper Tribunals and the Court of Appeal all found in favour of Ford Bupa, Nationwide and others on the successful appeal to the Upper Tribunal in the lead case, Bupa Insurance v HMRC, concerning claims to consortium relief going back over a number of years. Homeserve Membership Limited, the leading insurance intermediary for domestic emergency services, in its successful appeal to the High Court from the VAT and Duties Tribunal; the judgment provided important clarification for the insurance intermediary sector 6 Tax Disputes Practice /

7 Other selected experience includes advising: various corporates on transfer pricing disputes and controlled foreign company issues across a number of European jurisdictions a number of financial institutions in relation to possible civil and criminal investigations in respect of disputed tax credit claims in Italy under the UK/Italy tax treaty, together totalling in excess of 500 million, in respect of their London derivatives businesses an international pharmaceuticals group in relation to an investigation by the Serious Fraud Office into alleged fraudulent invoicing and a related investigation by HMRC into alleged VAT evasion a major financial institution in relation to an investigation by HMRC into missing trader frauds in the carbon emissions market a number of major multinationals on legal and operational responses to the proposed corporate criminal offence of failure to prevent the facilitation of tax evasion a well-known major UK food and drinks manufacturer in its dispute with HMRC over the value of a former subsidiary in the context of establishing the base cost of the former subsidiary for the purpose of calculating the loss or gain on its disposal a major European financial institution in relation to a dawn raid by HMRC under co-operation arrangements with the tax authorities of another EU Member State a group of senior employees from a major European financial institution on criminal allegations arising out of a very significant European tax investigation into a series of structured finance transactions a number of major financial institutions on appeals in relation to structured finance transaction. / Tax Disputes Practice 7

8 Profiles Tax partners Sara Luder Sara is Head of our Tax practice. T +44 (0) E sara.luder@slaughterandmay.com Tax Sara s practice covers all direct taxes and value added tax but, in particular, corporation tax. She has extensive experience of corporate transactions, including acquisitions, disposals, flotations and demergers. She also has considerable experience in leasing and other structured finance transactions. Her tax dispute work is a natural progression from the rest of her practice, and is primarily in the area of structured finance disputes including advising Nationwide in their dispute with HMRC over the tax treatment of dividends. She has also been involved in in-depth settlement discussions with HMRC as part of intervention processes. Sara is listed as a leading individual for Corporate Tax in The Legal 500, 2016, Chambers UK, 2017, Chambers Europe, 2016 and Chambers Global, 2016 and is recommended for Tax Litigation and Investigations in The Legal 500, Sara is also listed in Who s Who Legal 2016, in the ITR s Tax Controversy Leaders Guide 2016 and in the Tax Directors Handbook She writes regularly for a number of tax publications and is a frequent speaker at conferences. 8 Tax Disputes Practice /

9 Tony Beare T +44 (0) E tony.beare@slaughterandmay.com Tax Tony s practice covers all direct taxes, stamp duty and value added tax but, in particular, corporation tax. His main area of expertise is structured finance but he also has considerable experience in private and public mergers and acquisitions and debt and equity capital market transactions. Tony has advised on disputes with HMRC on matters such as company residence and various structured finance transactions, including a complex case on the inter-relationship between the UK and US tax regimes. He has also provided assistance on matters of UK tax law to US Counsel involved in litigation with the IRS. Tony is listed as a leading individual for Corporate Tax in The Legal 500, 2016, Chambers UK, 2017, Chambers Europe, 2016 and Chambers Global, 2016 and is recommended for Tax Litigation and Investigations in The Legal 500, He is also listed in Who s Who Legal 2016 and in the Tax Directors Handbook Tony is a part-time judge in the Tax Chambers of the First-tier Tribunal. He is on the consultation board for PLC Tax and is a regular contributor to the Tax Journal. / Tax Disputes Practice 9

10 Steve Edge Steve acts for a very wide range of clients across the full range of our practice. T +44 (0) E steve.edge@slaughterandmay.com Tax Steve has an extensive tax consultancy practice which includes advising on business and transaction structuring, dealing with in-depth tax investigations and tax litigation and doing a large amount of work in the transfer pricing/thin capitalisation area. Much of this involves dealing or negotiating with HMRC. Highlights include advising on: Ford of Europe Inc s successful appeal against a decision of HMRC in respect of a claim for the return of over 76 million paid in corporation tax (the First-tier Tribunal, Upper Tribunal and the Court of Appeal all found in Ford s favour); a number of EU tax appeals; a structured finance case that went to the Court of Appeal and was then settled very satisfactorily; and, a number of significant transfer pricing disputes (a couple of very large ones which were heading to litigation and then settled). Steve is ranked as a star individual in the 2016 editions of Chambers Europe and Chambers Global and in Chambers UK He is listed as a leading individual for Corporate Tax and is recommended for Tax Litigation and Investigations in The Legal 500, Steve is listed in Who s Who Legal 2016 and in the ITR s Tax Controversy Leaders Guide Steve also appears in the Tax Directors Handbook, TDH Tax Disputes Practice /

11 Mike Lane T +44 (0) E mike.lane@slaughterandmay.com Tax Mike s practice covers all direct taxes, stamp duties, VAT and, in particular, corporation tax. He has extensive experience in advising on mergers and acquisitions, capital markets transactions, group reorganisations and structured finance. In the tax disputes area, Mike has advised several clients going through an intervention process with HMRC in order to resolve a significant number of outstanding issues and also has experience advising on negotiating agreements with HMRC in relation to transfer pricing and other similar disputes. He is a contributor to the Tax Journal and Finance Act Handbook and is a regular speaker at various conferences on tax issues. Highlights include advising: a major European financial institution on its appeals in relation to certain structured finance transactions; two major US financial institutions on their appeal in relation to a structured finance transaction; a European retail group in relation to an ongoing HMRC enquiry into its financing structures and related matters; and in relation to an aggregates levy reclaim. Mike is named as a leading individual for Corporate Tax in The Legal 500, 2016 and Chambers UK, He is also listed in the Tax Directors Handbook / Tax Disputes Practice 11

12 Gareth Miles T +44 (0) E gareth.miles@slaughterandmay.com Tax Gareth s practice covers all direct taxes, stamp duties and value added tax with a strong focus on corporation tax. He has extensive experience of corporate transactions, including, in particular, mergers and acquisitions (public, private, domestic and cross-border) and group reconstructions. His tax disputes work includes acting for banks on disputes with HMRC regarding structured finance transactions. Gareth is listed as a leading individual in the Tax section of Chambers UK, He is recommended in The Legal and is listed in the Who s Who Legal He writes regularly for tax publications, is a member of the Tax Committee of the British Private Equity & Venture Capital Association and is on the consultation board for LexisNexis Tax PSL. 12 Tax Disputes Practice /

13 Dominic Robertson Recent contentious experience includes advising: Bupa on its successful appeal to the Upper Tribunal in Bupa Insurance v HMRC (consortium relief; meaning of beneficial entitlement ) T + 44 (0) E dominic.robertson@slaughterandmay.com Tax a number of groups on multi-issue interventions with HMRC, covering a wide range of matters (from technical loan relationship issues to transfer pricing) on CFC settlements with HMRC on double tax relief discussions between the UK and US on the resolution of a VAT dispute over the application of the Halifax recharacterisation doctrine on commercial disputes over allocation of risk in tax indemnities. Dominic is listed as a leading individual for Corporate Tax in Chambers UK, 2017 and is listed in the ITR s Tax Controversy Leaders Guide Dominic has previously been named by the Tax Journal as one of their 40 under 40 leading young UK tax professionals. / Tax Disputes Practice 13

14 William Watson William s practice covers all UK taxes relevant to corporate, financing and real estate transactions; besides corporation tax, this includes VAT, the various stamp duties and other direct taxes. T +44 (0) E william.watson@slaughterandmay.com Tax Cross-border mergers and group reconstructions have been major elements of William s corporate work, while on the financing side he has particular experience of securitisations and structured finance transactions. Tax disputes work has come to the fore more recently. Highlights include advising: Bupa on its successful appeal to the Upper Tribunal in Bupa Insurance v HMRC (consortium relief; meaning of beneficial entitlement ); Homeserve Membership Limited, the leading insurance intermediary for domestic emergency services, in its successful appeal to the High Court from the VAT and Duties Tribunal; the judgment provided important clarification for the insurance intermediary sector; Talisman Energy (UK) Limited in relation to a successful appeal to the First-tier Tribunal in respect of allowances against Petroleum Revenue Tax arising from expenditure incurred in the winning of oil in the North Sea; and a major multinational on the negotiation of a number of separate issues with HMRC. William is listed as a leading individual in the Tax section of Chambers UK, 2017, Chambers Europe and Chambers Global, 2016 and in the ITR s Tax Controversy Leaders Guide William is recommended for Corporate Tax in The Legal He is the Contributing Editor for two annual publications from the Global Legal Group, The International Comparative Legal Guide to Corporate Tax and Global Legal Insights - Corporate Tax. 14 Tax Disputes Practice /

15 Jeanette Zaman Jeanette s practice includes all direct taxes, stamp duties and value added tax but, in particular, corporation tax. She has considerable experience advising on mergers and acquisitions, demergers and corporate reconstructions. T +44 (0) E jeanette.zaman@slaughterandmay.com Tax Jeanette s tax disputes work includes: advising various clients on open enquiries with HMRC; advising clients on settlement discussions with HMRC as part of intervention processes; and ongoing involvement in advising the Reed Group in relation to its income tax/national insurance dispute with HMRC. Jeanette is listed as a leading individual in the Tax section of Chambers UK, 2017 and in the ITR s Tax Controversy Leaders Guide She is a member of the Tax Law Committee of the Law Society and its International Tax Sub-Committee and is a regular contributor to Tax Journal. / Tax Disputes Practice 15

16 Dispute Resolution partners Sarah Lee Sarah is the lead Dispute Resolution partner for tax litigation. On the contentious tax side, she advises major corporates on a broad range of domestic and international tax investigations and disputes. T +44 (0) E sarah.lee@slaughterandmay.com Dispute Resolution Highlights include advising: Deutsche Morgan Grenfell and Sempra Metals Limited in the widelyreported test cases brought under the Advance Corporation Tax Group Litigation Order challenging the applicable limitation period for claims made in respect of mistake of law and establishing that compound interest should be awarded as compensation for the wrongful payments of ACT; the landmark House of Lords decisions in these cases had implications far beyond the tax field; Ford of Europe Inc in respect of a claim for the return of over 76 million paid in corporation tax; the First-tier and Upper Tribunals and the Court of Appeal all found in Ford s favour; and a worldwide beverage conglomerate in relation to a very substantial dispute with HMRC involving transfer pricing and controlled foreign company issues across a number of a European jurisdictions. Sarah is listed as a leading individual for Dispute Resolution in Chambers UK, 2017, Chambers Europe and Chambers Global She is ranked for Contentious Tax in Chambers UK, Sarah is recognised as a leading individual for Commercial Litigation and Tax Litigation and Investigations in The Legal 500, 2016 and the Tax Directors Handbook She is listed in the ITR s Tax Controversy Leaders Guide 2016 and is a CEDR accredited mediator. 16 Tax Disputes Practice /

17 Nick Gray Nick advises corporate clients in relation to HMRC investigations and tax disputes, and has particular experience of transfer pricing, controlled foreign company and income tax issues. T +44 (0) E nick.gray@slaughterandmay.com Dispute Resolution Highlights include acting for: Talisman Energy (UK) Limited in relation to a successful appeal to the First-tier Tax Tribunal in respect of allowances against Petroleum Revenue Tax arising from expenditure incurred in the winning of oil in the North Sea; Bank of Ireland Britain Holdings in relation to a major corporation tax dispute with HMRC: the Special Commissioners, the High Court and the Court of Appeal all held in favour of the Bank of Ireland, providing important clarification on the tax treatment of tri-partite repos; and JP Morgan in relation to claims against HMRC regarding the ability to off-set losses of related companies under ICTA 1988; the proceedings were the subject of a Group Litigation Order. Nick is named as a leading individual in the Dispute Resolution section of Chambers UK, He is also recommended for Commercial Litigation and International Arbitration in The Legal 500, / Tax Disputes Practice 17

18 Ewan Brown Ewan regularly advises clients across a range of contentious tax matters. Highlights include advising: T +44 (0) E ewan.brown@slaughterandmay.com Dispute Resolution Nationwide in relation to a substantial dispute with HMRC regarding the tax treatment of dividends in a structured finance transaction; the Reed Group on appeals against HMRC tax assessments for allegedly unpaid income tax and national insurance contributions and, separately, on claims for over-accounted VAT during a period of many years in respect of the supply of temporary workers; and Morgan Grenfell on its successful and widely reported challenge in the House of Lords to HMRC s attempt to require it to produce material protected by legal professional privilege. Ewan is listed as a leading individual for Dispute Resolution and Banking Litigation in Chambers UK, He is also recommended for Banking Litigation, Commercial Litigation and Financial Services (contentious) in The Legal 500, Tax Disputes Practice /

19 James Stacey James regularly advises major financial institutions and corporates in relation to domestic and international contentious tax disputes and investigations. T +44 (0) E james.stacey@slaughterandmay.com Dispute Resolution Recent experience includes advising: Nationwide in relation to a substantial dispute with HMRC regarding the tax treatment of a structured finance transaction. The Court of Appeal (agreeing with both the First-tier and Upper Tier Tribunals) found in Nationwide s favour on all counts; Bupa, Nationwide and others on the Moneta tax litigation; Reed in relation to claims for over-accounted VAT during a period of many years in respect of the supply of temporary workers. The correct VAT treatment of the relevant supplies having been established at first instance, an important issue of European law is on appeal to the Court of Appeal, Reed s appeal on important points of European law is due to be heard by the Court of Appeal in December 2013; a major UK PLC in relation to a complex, fact-heavy transfer pricing dispute worth in excess of 1 billion. The matter was successfully settled before it reached court; a major financial institution in relation to an investigation into the institution s trading of carbon credits and the possibility that transactions further down the transaction chain were fraudulent, and a related 80 million VAT dispute with HMRC. The dispute with HMRC was successfully resolved in the client s favour; a major financial institution in relation to HMRC s challenge to six different tax structures and disclosed tax avoidance schemes, involving around 20 separate appeals. Appeals relating to four of the tax structures were successfully resolved with HMRC; appeals relating to two of the structures are on appeal to the First-tier Tribunal; and a global financial institution in relation to a dawn raid by HMRC under co-operation agreements with the tax authorities of another EU member state. James is recommended for Banking Litigation and International Arbitration in The Legal 500, James is also listed in the ITR s Tax Controversy Leaders Guide / Tax Disputes Practice 19

20 Richard Jeens T +44 (0) E richard.jeens@slaughterandmay.com Dispute Resolution Richard s practice spans a broad-range of high profile commercial disputes, investigations and contentious regulatory and tax matters, often involving multiple jurisdictions. He spent several years in the Tax department before moving into the Dispute Resolution group, he has particular expertise in contentious tax matters and managing tax risks across a business. He has experience advising clients at all stages of a dispute - from how to avoid potential challenges when structuring and implementing a transaction through to eventual proceedings. He acts for major corporates and financial institutions as well as governmental bodies and international organisations. Richard is also a partner in our Data Protection and Privacy hub and advises on all aspects of data protection and privacy, including in the context of global investigations or disputes. Highlights include advising: Banco Santander Totta in successful High Court litigation relating to the validity of interest rate swaps entered into on ISDA terms between the bank and Portuguese public sector companies. This case was the first case to be heard in the new Financial List in the High Court a multnational group on multi-issue intervention with HMRC, including procedural, reputational and evidential issues a major international joint venture on a multi-year transfer pricing dispute Standard Chartered in the context of various regulatory investigations, including the multi-jurisdiction data protection and privacy issues arising when dealing with regulatory requirements and requests Hays on its claims for repayment of over 1bn of VAT a major global fund on litigation to protect its investment in a potential insolvency Richard is the contributing editor and UK chapter author to Getting the Deal Through: Tax Controversy 2017 and is listed in the ITR s Tax Controversy Leaders Guide Tax Disputes Practice /

21 Slaughter and May 2016 This material is for general information only and is not intended to provide legal advice. For further information, please speak to your usual Slaughter and May contact. November 2016 OSM _v06