Simon Whitehead was a founding partner of the firm. He has more than 36 years of litigation experience and has spent more than 23 years exclusively focusing on contentious tax, mostly in direct tax and particularly corporation tax. He represents high net worth individuals, the largest multinationals and household names in complex tax disputes in all areas of direct and indirect tax in the UK and Europe. He has represented clients at all court levels including 9 times in each of the Supreme Court and CJEU.Simon has been selected as the lead and test-case solicitor in most group litigation orders in the Chancery Division of the High Court, in which multinational company groups challenge the lawfulness of various UK corporate tax imposts. He established the first ever Group Litigation Order in the Administrative Court, which successfully challenged HMRC’s practice in assessing the tax transfer of pension savings to foreign pension funds.His cases include the Marks & Spencer (group relief), Prudential (dividend taxation, the ROSIIP (pension transfers) and Autologic (jurisdiction of tax courts) cases. He has been top ranked in leading legal directories for well over a decade.Publications include Tax Journal, EC Tax Review, Taxation, International Tax Review & others. Editor The Tax Disputes and Litigation Review (8 Eds).
Admitted as a solicitor of the Australian Federal Court and High CourtAdmitted as a solicitor in England and WalesAdmitted as a solicitor in New South WalesMember of the Law Society of England and WalesMember of the Law Society of New South Wales
University of Sydney - PhDUniversity of Sydney - LLBUniversity of Sydney - BA (first class honours)
For more than ten years, Simon has been ranked consistently top among the leading individuals for tax litigation and contentious tax by the Legal 500 and Chambers & Partners. Legal Business has described Simon as ‘the go-to guy if you want a no-nonsense approach to success’ and ‘the first person any company should think about in tax litigation’ (2012).
JHA consultant Simon Whitehead has edited the seventh edition of The Tax Disputes and Litigation Review and has also contributed the UK chapter to this guide. This book is published by The Law Reviews and is available online and in print.
The objective of this book is to provide tax professionals involved in disputes with revenue authorities in multiple jurisdictions with an outline of the principal issues arising in those jurisdictions. In this, the seventh edition, we have continued to add to the key jurisdictions where disputes are likely to occur for multinational businesses.
Each chapter provides an overview of the procedural rules that govern tax appeals and highlights the pitfalls of which taxpayers need to be most aware. Aspects that are particularly relevant to multinationals, such as transfer pricing, are also considered. In particular, we have asked the authors to address an area where we have always found worrying and subtle variations in approach between courts in different jurisdictions, namely the differing ways in which double tax conventions can be interpreted and applied.
The idea behind this book commenced in 2013 with the general increase in litigation as tax authorities in a number of jurisdictions took a more aggressive approach to the collection of tax, in response, no doubt, to political pressure to address tax avoidance. In the United Kingdom alone we have seen the tax authority vested with broad new powers not only of disclosure but even to require tax to be paid in advance of any determination by a court that it is due. The provisions empower the revenue authority, an administrative body, to compel payment of a sum, the subject of a genuine dispute, without any form of judicial control or appeal.
Over the past year, the focus on perceived cross-border abuses has continued with European Commission decisions against past tax rulings in Belgium, Ireland and Luxembourg, and the BEPS Project reaching a crescendo in the announcement of a 'diverted profits tax' to impose an additional tax in the United Kingdom when it is felt that a multinational is subject to too little corporation tax even in an EU context and a digital services tax in the United Kingdom introducing provisions that appear in principle to pre-empt the Commission's action in the area. The general targeting of cross-border tax avoidance now has European legislation behind it with the passage last year of the second Anti-Tax Avoidance Directive. The absence of much previous European legislation in direct tax has always been put down to the need for unanimity and the way in which Member States closely guard their taxing rights. The relatively speedy passage of this legislation (the Parent–Subsidiary Directive before it took some 10 years to pass) and its restriction of attractive tax regimes indicates the general political disrepute with which such practices are now viewed.
These are, perhaps, extreme examples, reflective of the parliamentary cycle, yet a general toughening of stance seems to be felt. In that light, this book provides an overview of each jurisdiction's anti-avoidance rules and any alternative mechanisms for resolving tax disputes, such as mediation, arbitration or restitution claims.
We have attempted to give readers a flavour of the tax litigation landscape in each jurisdiction. The authors have looked to the future and have summarised the policies and approaches of the revenue authorities regarding contentious matters, addressing important questions such as how long cases take and situations in which some form of settlement might be available.
We have been lucky to obtain contributions from the leading tax litigation practitioners in their jurisdictions. Many of the authors are members of the EU Tax Group, a collection of independent law firms, of which we are a member, involved particularly in challenges to the compatibility of national tax laws with EU and EEA rights. We hope that you will find this book informative and useful.
Originally printed in Tax Journal on 10 February 2017.
The recent opinion of AG Wathelet in BT Pension Trustees (Case C-628/15) provides an interesting and direct answer to the question: what is a taxpayer’s remedy for a breach of EU law where it has not paid any tax at all?
In BT Pension Trustees, Advocate General Wathelet challenges the established dichotomy adopted in the characterisation of claims in breach of EU law. He finds a simpler way to address a claim by an exempt taxpayer seeking a credit denied in breach of EU law than the usual distinction between a claim for the repayment of tax and the more restricted claim for damages to compensate for indirect losses. In his view, the primacy of EU law acts to remove the discriminatory provisions pure and simple.
Continue reading on Tax Journal (subscription required).
Originally printed in The In-House Lawyer: Comparative Guides on 29 September 2016.
This country-specific Q&A provides an overview to tax laws and regulations that may occur in the United Kingdom (UK).
It will cover witholding tax, transfer pricing, the OECD model, GAAR, tax disputes and an overview of the jurisdictional regulatory authorities.
This Q&A is part of the global guide to Tax. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/tax-2/
Continue reading on The In-House Lawyer: Comparative Guides
Originally published in Tax Journal on 9 December 2016.
The Court of Appeal handed down its judgment in The Test Claimants in the FII Group Litigation v HMRC on 24 November 2016, finding largely in favour of the taxpayers. The method of computing double tax relief on EU sourced dividends for the period from 1973 to 1999 therefore remains as established by Henderson J. HMRC again raised its various ‘restitutionary’ defences as to why it should not have to repay the unlawful tax, but these were rejected. The court notably allowed the claimants’ cross-appeal regarding the date of discovery, extending the date from which the six-year limitation period began to run from 2001 to 12 December 2006 and bringing all claims in the GLO within time.
Continue reading on Tax Journal (subscription required)
Originally printed in Tax Journal on 21 Oct 2016.
Henderson J handed down judgment in Six Continents v HMRC [2016] EWHC 2426 (Ch) on 5 October 2016. The issues concerned what foreign profits should receive credit at the foreign nominal rate in accordance with the ruling of the CJEU in Test Claimants in the FII Group Litigation v HMRC (Case C-35/11). The judgment holds that Six Continents are entitled to a credit at the FNR on the underlying foreign profits which incorporated adjustments to the commercial profits for the revaluation of shareholdings, the release of warranty provisions and exchange rate adjustments which were removed for local tax. It also held that the same credit would apply to capital gains even though exempt under the Dutch participation exemption.
Continue reading on Tax Journal (subscription required).
Originally printed in Tax Journal on 11 May 2016
The Court of Appeal has handed down its judgment in the Prudential case, in what is hoped to be one of the final steps of this long lasting action between taxpayers invested in cross border portfolio holdings and HMRC. HMRC’s appeal was allowed on three esoteric issues of computation relating to ACT but was otherwise dismissed. The judgment sends out a broader message: it is not permissible, as HMRC sought to do in relation to ACT, to disregard the legislative system and seek to superimpose a newly devised system to replace it in circumstances where EU law was engaged. The issue of Prudential’s entitlement to compound interest remains subject to further litigation. Simon Whitehead and Philippe Freund (Joseph Hage Aaronson), who acted for the taxpayers, summarise the outcome of this judgment and explain why it has taken so long.
Continue reading on Tax Journal (subscription required) or
Originally printed in Tax Journal on 13 September 2013
The advocate general’s opinion on Test Claimants in the FII Group Litigation v HMRC (Case C-362/12) was delivered on 5 September. The advocate general’s opinion expressly follows the reasoning of the majority in the Supreme Court. The principle of effectiveness, he considers, is engaged whenever a domestic remedy is used to enforce an EU right. That principle prohibits the reduction in a time limit without both notice and transitional arrangements: ‘a legal remedy cannot offer “effective” protection unless the conditions in accordance with which it may be used and achieve a positive outcome are known in advance’ (para 47). The existence of another remedy would not cure an incompatibility with EU law.
He also concludes, again in keeping with the majority of the Supreme Court, that the principles of legitimate expectation and legal certainty are also offended. The claimants were entitled to expect that their claims would be ruled upon on the basis of what the law was determined to be and not to be deprived of that right by statute.
Continue reading on Tax Journal (subscription required) or
Originally printed in Tax Journal on 24 May 2013.
Claims for group relief for the losses of companies in the group in other EU Member States must meet the condition that the possibilities for past, present and future use of the losses locally must be exhausted. The Supreme Court has concluded, in the latest stage of the M&S case, that the date upon which that condition must be met is the date of the claim and not, as HMRC has advocated, the end of the accounting period in which the loss was incurred. Steps taken by taxpayers, such as the liquidation of the loss making subsidiary, will not exclude the making of a claim.
The author acts on behalf of Marks and Spencer in this case.
Continue reading on Tax Journal (subscription required) or
