Pump Court Tax Chat

David Ewart KC and Laura Ruxandu look at judicial review in relation to tax cases from a procedural as well as substantive perspective.
when you can bring judicial review in a tax case.
what to do if you have alternative remedies.
the jurisdiction of the administrative court.
procedure for judicial review.

1: 13 The three broad areas in which you can bring judicial review in tax cases.
3:19 Area 1: Extra-statutory rulings - where HMRC resile on an earlier representation personal to the taxpayer. These claims cannot be brought in the tax tribunal. Whilst most of the case law is won by the HMRC, equally there are a lot of cases in which the HMRC accept the taxpayer's challenge.
10:49 Area 2: Where the tax payer has read and relied on a general statement in a published document/statement.
20:53 Area 3: Procedural errors- breach of natural justice, applications for disclosure.
26:42 Judicial review should be viewed as a last resort. It is a residual remedy and is not available if alternative remedies are available.
26:56 The jurisdiction of the administrative court to hear public law arguments such as judicial review.
36:00 Procedure for judicial review. You need to apply for permission. Differences to the Tribunal eg time limits, pre-action protocol. Very important to get early professional advice and evidence to cover the application as well as judicial review (if you get permission).
44:52 Increasing role of Upper Tribunal.
47:41 Difference of appeals to appeals in the Tribunal.
48:00 Strategic importance of threatening judicial review.
Cases
R (Hawarth) v HMRC [2021] UKSC 25
R (Locke) v HMRC [2019] EWCA Civ 1909
R (Refinitiv UK Holdings Ltd) & Anor v HMRC [2023] UKUT 00257 (TCC)
R (Airline Placement Ltd) v HMRC [2023] EWHC 1191 (Admin)
Murphy & Linnett v HMRC [2023] EWCA Civ 497
R (Aozora GMAC Investment Ltd) v HMRC [2019] EWCA Civ 1643
R (Rettig Heating Group Ltd) v HMRC [2025] UKUT 143 (TCC)
R (Archer) v HMRC [2017] EWHC 296 (Admin)
Zeman v HMRC [2021] UKUT 182 (TCC)
Harrison v HMRC [2023] UKUT 00038
Caerdav Ltd v HMRC [2023] UKUT 00179 (TCC)
Reed Employment v HMRC [2015] EWCA Civ 805
MCM v HMRC
Glencore v HMRC [2017] EWCA Civ 1716
Legislation
s50 Taxes Management Act

Legislation
Part III and Schedule 5 of the Finance Act 1996
Section 42 and Schedule 12 of the Finance Act 2018
EU Landfill Directive (1999/31/EC)
Consultation on Reform of Landfill Tax in England and Northern Ireland (April 2025)
Paris Agreement 2015
s1 Climate Change Act 2008Renewed Agenda for European Union – United Kingdom cooperation common understanding (May 2025)
Environment Act 2021
The Environmental Targets (Residual Waste) (England) Regulations 2023, regulation 2

Cases
Waste Recycling Group Ltd v HMRC [2008] EWCA Civ 849; [2009] STC 200
Patersons of Greenoakhill Ltd v HMRC [2016] EWCA Civ 1250; [2017] 1 WLR 1210; [2017] STC 225
Devon Waste Management Ltd v HMRC [2021] EWCA Civ 584; [2021] 4 WLR 89; [2021] STC 990

Joshua Stevens | Pump Court Tax Chambers
Zizhen Yang | Pump Court Tax Chambers

Thomas Chacko and Quinlan Windle discuss the options for tax breaks in relation to spending on R&D:
outline of scheme and changes made in 2024
what R&D means
can you claim when R&D is contracted out
practical points about how to deal with enquiries bearing in mind recent case law

1:25 outline of the scheme pre the Finance Act 2024 - basic deduction and 2 further possible schemes (relief for small and medium enterprises + R&D credit).
2:54 effect of Finance Act 2024
3:23 what is R&D? A common question as well as major issue in many of the cases.
8:03 the effect of HMRC now taking very robust stance on R&D tax credit claims and requiring cases to pass a very high threshold. Issues with highly technical areas eg software. Tax payers must be able to explain highly technical projects to HMRC/tribunal in a way that enables them to understand why the work merits the tax credit.
18:40 restrictions on qualifying expenditure in recent case law and following the Finance Act 2024.
37:09 practical problems in enquiries and litigation. Also the use of ADR.
Citations
Legislation and guidelines
Corporation Tax Act 2009
Finance Act 2024
BEIS Guidelines - latest update March 2023 (originally the DTI Guidelines)
HMRC Guidance - CIRD84250
HMRC CIRD161000
Case law
Hadee Engineering Co Ltd v Revenue & Customs [2020] UKFTT 497 (TC)
BE Studios v Smith & Williamson Ltd [2005] EWHC 1506
Flame Tree Publishing v HMRC [2024] UKFTT 349 (TC)
Get Onbord v HMRC [2024] UKFTT 617 (TCC)
Quinn (London) Ltd v HMRC [2021] UKFTT 437 (TC)
Collins Construction Ltd (TC09332) - 21 October 2024
Stage One Creative Services [2024] UKFTT 1059 (TC)

Rupert Baldry KC and Sadiya Choudhury KC examine how the customs and excise duty regime is operating post-Brexit. This includes a brief overview of the pre-Brexit regime, the main legislative changes since Brexit, the relationship between the old and new regimes, some recent cases and future developments in this area.
1:15 History of customs and excise duties
3:31 Tariffs - what are they? Why do we have them? Who pays them? Any restrictions on them?
6:45 Role of World Trade Organisation in harmonising tariffs. Role of Free Trade Agreements (FTAs) and customs unions.
8:25 Framework of customs law pre Brexit - a customs union in which the EU negotiated FTAs and there was no need for a domestic UK customs code except in relation to remedies and enforcement.
11:23 Excise duty regime pre Brexit.
12:55 Pre Brexit, dualistic interpretation to legislation ie look at Act then underlying directive it sought to implement.
15:13 Legislative changes to customs post Brexit principally (a) Taxation Cross-border Trade Act 2018 (TCTA) and (b) new FTAs.
16:21 TCTA brings in a new customs duty known as import duty. How this operates is set out in O'Neill Wet Suits. The TCTA recognises and allows for FTAs to be agreed.
20:07 3 types of FTA now (a) Continuity Agreements (b) new FTAs (c) Trade & Cooperation Agreement 2020 with EU.
22:40 Status of FTAs in UK law. Interaction of article 5 TCTA and s29 European Union Future Relations Act 2020 + Lipton v BA City Flyer.
29:39 Current regime for customs - FTAs but no customs unions. If there is no FTA/relief/tariff suspension (eg Developing Countries Trading Scheme) then UK global tariff applies.
31:17 Practical consequences of new customs regime for all parts of UK other than Northern Ireland. Less drastic consequences for excise duties.
32:44 Explanation of the rules of origin.
35:20 The relationship between the new domestic customs regime and EU law. How are accrued EU law rights treated? And what of events after 31.12.20? What is the status of previous case law?
49:43 Excise duty - legislative interpretation now has a carve out like VAT (s28 Finance Act 2024) and will refer back to the old law. How are the courts going to view previous case law e.g. in relation to “holding” goods?
55:07 How do the new rules tie in with the appeal framework? Very few changes other than that the courts no longer have to apply EU principles. Changes from the previous rules are causing complications eg the interaction of appeals and remission applications.
1:01:42 New regime is made up of a very short Act and a lot of secondary legislation which allows HMRC to publish notices. This makes it difficult to see an overarching policy or find the policy that applies to a particular case.
1:03:44 Discussion of some recent cases.
1:06:36 What of the future? New case law will take time to build up, there are developments in the EU which will affect the UK and the carbon cross-border adjustment mechanism is to be introduced in 2027.
Citations and legislation

UK legislation
Section 2, European Communities Act 1972
Customs and Excise Management Act 1979
Alcoholic Liquor Duties Act 1979
Hydrocarbon Oil Duties Act 1979
Tobacco Products Duty Act 1979
Chapter II, Finance Act 1994
The Excise Goods (Holding, Movement and REDS) Regulations 1992 (SI 1992/3135)
The Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (SI 2010/593)
Taxation (Cross-border Trade) Act 2018
European Union (Withdrawal) Act 2018
Sections 52 and...

Jeremy Woolf and Barbara Belgrano look at how Brexit affects the UK tax position and consider some of the issues which will be ongoing, at least in the near future.
(3:08) Where we are today: you have to consider which period your case falls within. There are three periods to consider: (1) 2018 up to IP Completion Day being 31st December 2020 (2) 1 January 2021 - 31st December 2023 (3) 1st January 2024 onwards.
The first period: up to IP Completion Day on 31st December 2020
(4:42) The UK still a member of the EU but subject to the 2018 Act which purport to have retroactive effect. Article 89 of the Withdrawal Agreement (endorsed by HMRC v Perfect) make ECJ decisions relating to litigation commenced before Brexit or during the first period binding. ECJ decisions post Brexit only persuasive. See Lipton and The Umbrella Interchange.
(7:04) Effect of section 2 2018 Act - saves EU-derived domestic law before IP Completion Day subject to Section 5 (supremacy) and Schedule 1 (Francovich damages).
(8:56) Schedules 1 and 8 2018 Act - transitional provisions. To what extent, post Brexit, can you rely on general principles of EU law? Allianz Global v Barclays.
(12:01) Section 3 of the 2018 Act (incorporation of direct EU legislation) which is subject to Section 5 and Schedule 1.
(13:06) Section 4 of the 2018 Act (the saving of rights under section 2 ECA). Wide rule important in direct tax field (eg transfer of assets code). Effect in tax law of The Freedom of Establishment and Free Movement of Services EU Exit Regulations 2019. Effect of EU Directives and CG Fry & Son Ltd. Purposive interpretation dealt with in section 6. Harris v Environment Agency.

The second period: 1st January 2021 - 31st December 2023
(19:49) Section 6 of the 2018 Act (extent to which UK courts bound by ECJ judgments). HMRC v Perfect, Lipton and The Umbrella Interchange cases.

The third period: post 1st January 2024
(22:18) RULA now takes effect. It is not retrospective and only covers disputes that relate to the period post January 2024.
(23:53) Section 2 of RULA repeals section 4 of the 2018 Act. Section 3 of RULA abolishes the supremacy of EU law. Will therefore be very difficult to rely on EU law in the direct tax arena (even in Transfer of Assets Code) post 1st January 2024.
(25:54) VAT and excise duties in a different position due to section 28 Finance Act.
(27:10) Section 6 of RULA is not yet in force. Amended test as regards looking at earlier cases. VAT most likely to be affected.

EU law remains very relevant up to 1st January 2024, despite Brexit. And EU law remains relevant going forward in the VAT context. After 1st January 2024 EU law may still have an impact on the construction of UK law.
Citations
Legislation
Retained EU Law Revocation & Reform Act 2023 ("RULA")
European Union (Withdrawal) Act 2018 (the "2018 Act")
Article 89 Withdrawal Agreement
The European Communities Act 1972
The Freedom of Establishment and Free Movement of Services EU Exit Regulations 2019
Section 28 Finance Act 2024

Transfer of Assets Code
Cases
HMRC v Perfect [2022] EWCA Civ 330
Lipton v BA Cityflyer Ltd [2024] UKSC 24, 3 WLR...