International Tax – England – Rebecca Murray

Rebecca has a tax litigation and advisory practice, specialising in Private Client, Corporate Tax, VAT and judicial review, advising and representing all sizes of corporates and individuals, as well as acting for HMRC on the full range of direct and indirect tax issues.

Reported cases include: AD Bly v HMRC [2024] UKUT 104; Benoit D’Angelin v HMRC [2024] UKFTT 462; Bell & Ors v Revenue & Customs [2023] UKFTT 989 (for HMRC, tax relief claimed for shares gifted to charity); Mypay [2023] (umbrella company, temporary workplace travel expenses); NWM [2023] (travel and subsistence); Nourish [2023] EWHC (interim relief by way of restoration of VAT registration); AML Tax (UK) Limited (DOTAS) [2022]; A D BLY [2021] (expense in accounts not wholly and exclusively for the purposes of the trade); Ball Europe [2021] (discovery assessments); Smartpay (DOTAS) [2022] UKFTT; White-Collar Financial [2020] UKFTT (DOTAS); Wilson (UT, question whether a member of an LLP was an employee); Sippchoice [2020] UKUT (payment of shares in discharge of a debt obligation a “contribution paid” to a SIPP); Sippchoice [2017] UKUT 87 (whether pension provider acted reasonably); Atholl House [2019] UKFTT (IR35, whether Kaye Adams was, hypothetically, employed by the BBC); K5K [2019] (IR35); HMRC v Goldsmith [2019] UKUT 325 (landmark case on late filing penalties); HMRC v Rogers [2019] UKUT 406 (landmark case on late filing penalties); Donaldson v HMRC [2016] EWCA Civ 761 (landmark case on late filing penalties); Arthur v HMRC [2017] EWCA Civ 1756 (separation in circumstances likely to be permanent); R (oao Rowe) v HMRC [2017] EWCA Civ 2105 (APNs); Eclipse Film Partners (No. 35) LLP, (UKSC, CA, UT, FTT) led by Malcolm Gammie KC (film scheme); Tower MCashback [2011] UKSC 19, led by Kevin Prosser KC (Junior Counsel for HMRC, led by Kevin Prosser QC (landmark case on expenditure for the purposes of capital allowances, whether money borrowed on a non-recourse basis re-payable out of profits of the software qualifying expenditure on the software); Aberdeen Asset management (UT) on the taxation of bonuses; Moyes (FTT) (interaction of PAYE regulations and liability of the employee to pay income tax that should have been deducted at source by the employer but was not); Evans v HMRC (FTT) (successful appeal against income tax assessments on husband who paid wife for administrative duties, including the meaning of “payment” for income tax purposes); R (oao Walapu) v HM Revenue & Customs [2016] EWHC 658 (challenge to accelerated payment notices, whether notifiable); R (oao Rowe & Ors) v Revenue & Customs [2015] EWHC 2293 (led by Jessica Simor QC) (landmark case, challenge to APNs issued to participants in Ingenious film schemes, human rights and public law arguments); R (oao Chibong Lucas) v SSHD [2016] EWHC 1960; CKSW v HMRC [2018] UKFTT 141. Sole Counsel for the taxpayer. Successfully defended a strike out application by HMRC on the basis that the question of trade is one of fact, which is not suitable for the tribunal to decide as a preliminary matter without hearing all of the evidence. Reported VAT and customs cases: MCL/DPSL v HMRC [2016] UKFTT 779 (place of supply of electronic services). Sole Counsel for the taxpayer – Hills v HMRC (nature of supply, whether an option to tax was validly exercised and/or disapplied); BAA v HMRC (CA) (input tax recovery on supplies of professional and advisory services received by a company that made and executed a takeover bid); Prince Karunaraina Samurappuli Arachchige v HMRC (CA) (place of supply of phonecards); (1) University of Essex (2) Universal Accommodation Group v C of R&C input tax incurred on the construction of the student accommodation that was deducted by the construction company (UAG) on the making of a zero-rated supply to a University (VAT grouping, interaction with capital goods scheme, reasonableness of refusal by HMRC of application to backdate the application to de-group); Jigsaw Wholesale Ltd v HMRC (Customs duties); Hasbro European Trading BV v HMRC (Classification of “Beyblades” as a toy or game).

Rebecca has recently acted as sole tax counsel in several ultra-high-net-worth individual divorces, including as parties’ joint expert to the family court, advising on maximising available reliefs and avoiding traps in the course of the separation of UK and overseas assets, main residences and investments, as well as interests in differing types of trusts (EBTs, disabled persons trusts and protected foreign-source income trust structures, including advice on transfers of assets abroad). In addition, she has recently advised on the sale and restructure of large businesses and corporate structures, including for private reasons (such as IHT and CGT relief maximisation), as well as restructuring for IPO purposes, in particular on transactions in securities. Meanwhile, she has advised non-UK domiciled individuals on the statutory residence and domicile tests and planning for income tax, CGT and IHT. She advises private equity houses, and is well versed on private equity structures. She has further experience in offshore discovery matters, as well as HMRC investigations.

Rebecca has a varied indirect tax practice and has advised on a range of VAT issues related to apportionment, acquisition of capital assets, whether goods are standard- or zero-rated, partial exemption methods, intra-group supplies, fixed establishments, place of supply, nature of supplies by a partnership with partners of differing status, Grenfell snagging issues, the application of anti-avoidance rules and the principle of abuse. She has also recently advised on the application of EU principles through the transitional period of (and post) Brexit.

Awards
• Pro Bono Awards Highly Commended Pro Bono Junior of the Year 2018
• Shortlisted: Chambers and Partners “Tax Junior of the Year” 2015
• STEP “Young Practitioner of the Year” Finalist 2013
• Winner of the Tax Journal 40 Under 40 2012/13
• Winner of “Taxation’s Rising Star” Award 2013
• Shortlisted for BLT’s “Indirect Tax Rising Star” Award 2012

Professional Memberships
Attorney General’s Panel of Counsel (B Panel); CIOT (Fellow), ATT, TEP, RBA, VAT Practitioners Group.

Publications
• Tax Avoidance (Sweet & Maxwell, 4th ed. 2020)
• CCH British Tax Guide on Corporation Tax 2007–2008
• Contributor to British Tax Review, Private Client Business, Simon’s Direct Tax Service and CCH British Tax Guide

Corporation tax is chargeable on income and gains arising to a company in a financial year wherever they arise if the company is resident in the UK (as to which see below). If a company is non-UK resident, it is nonetheless chargeable to corporation tax on income if it carries on a trade in the UK of dealing in or developing land (and if so, then it is chargeable on all its profits wherever arising), or, if it carries on a trade through a permanent establishment in the UK, or, if it carries on a UK property business, or, if it has other UK property income.

A company is resident in the UK if it is incorporated in the UK, or if the “central management and control” of its business (usually, control at board level) is exercised in the UK. This is the test of residence originally applied by the House of Lords in De Beers Consolidated Mines Ltd v Howe [1906] AC 455 and more recently applied in Wood v Holden.

However, a company whose central management and control is exercised in the UK may be treated as a non-UK resident by virtue of a double tax treaty. The OECD model treaty test to be applied is usually where the place of effective management (“POEM”) of the company is. This was considered by the Court of Appeal in Wood v Holden (and more recently was considered in relation to the residence of trustees in the context of a particular tax avoidance scheme, known as the “round the world” scheme, by the Court of Appeal in the case of Smallwood v HMRC [2010] EWCA Civ 778).

The tax code in the UK is tremendously complicated. Any structuring or restructuring involves consideration of many differing sets of provisions, including targeted anti-anti-avoidance rules, case law principles and the general anti-abuse rule, as well as tax treaty considerations.

Private equity structures have afforded capital gains tax treatment to carried interest; however, there are a number of income tax avoidance provisions to consider in deciding what structure should be adopted.

I have encountered several clients with international discoveries and investigations, as well as UK-based non-disclosure cases in which HMRC has made assessment based on estimated income from an individual’s lifestyle. Each case involves differing considerations, and all involve consideration of complex provisions, such as the transfer of assets abroad rules, requirement to correct, disclosure facilities, penalties, as well as the application of Article 6 of the ECHR, which still applies after Brexit under the Human Rights Act 1998.