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MICHAEL FURNESS QC

Call: 1982    QC: 2000

+44 (0)20 7306 0102mfurness@wilberforce.co.uk

Tax

Michael has extensive experience of litigating tax disputes, and advising on tax, in the UK and Hong Kong.

He was Standing Counsel to the Inland Revenue in Chancery Matters from 1995 to 2000 (when he took silk) and since then has regularly appeared for taxpayers and revenue authorities here and in Hong Kong. He has argued more than 20 tax appeals in the Court of Appeal (not counting cases where he was led) and has appeared in 7 tax appeals in the House of Lords and Supreme Court. This is on top of an even larger number of cases decided in the lower courts and tribunals. He can draw on his experience as a litigator in other fields, such as professional negligence, occupational pension schemes and contentious trusts, in his handling of witnesses and experts, and in the presentation of complex technical issues in a way which the Court finds helpful and engaging.

He is also brought in by clients who wish to undertake a preliminary assessment of the merits of a prospective tax dispute. His extensive experience in acting for taxpayers and revenue authorities means that he is well placed to evaluate the likely response of a revenue authority or a tax tribunal.

Closely allied to his tax litigation practice is his experience in related professional negligence litigation. He conducted the trial and the subsequent successful appeal in the case of Barker v Baxendale Walker, which is now the leading case on the duty of tax advisers to warn clients of the risk their advice might be wrong. Of course, most of these cases do not fight to a trial, but Michael regularly advises on and drafts pleadings for such claims. He advises the BMIF on tax-related negligence issues. Again, he benefits from the fact that he has experience of conducting a wide range of negligence claims, not just tax-related claims.

Because of his expertise in the field of occupational pensions and charities, he is often asked to advise on the taxation of pension schemes, and on tax issues facing charities.

Recent notable tax appeals include:

  • Scott v HMRC [2018] (UT) and [2020] (CA). Representing the taxpayer in a dispute over the interaction of corresponding deficiency relief with the rate of CGT.
  • Proteus and Samarkand v HMRC [2017]. Representing the taxpayers in the Court of Appeal in a tax appeal to, combined with judicial review of HMRC practice concerning partnerships investing in films.
  • Morgan Lloyd v HMRC [2016] challenging the convention compatibility of the regime for taxing the acquisition of interests in taxable property by registered pension schemes.
  • Hargreaves v HMRC [2015]. Appearing in the Court of Appeal (alongside David Goldberg QC and Claire Montgomery QC) on an appeal which raises the issue of the right of a taxpayer to require HMRC to justify making an out of time assessment before the taxpayer is required to make his defence on the merits.
  • Re Travers [2013]. Representing the estate of P L Travers in a successful challenge to HMRC’s attempt to impose the special rate of income tax for trusts on royalties from the Mary Poppins stage musical.
  • Mayes v HMRC [2011] Successfully defending a tax avoidance scheme in the Court of Appeal.
  • DCC Ltd v HMRC [2010] Successfully representing HMRC in the Supreme Court in an appeal on the taxation of gilt repos.

He also advises, and appears for the Hong Kong Commissioner of Inland Revenue. He   has appeared in the Court of Final Appeal in Shui On Credit Co Ltd v CIR [2010] and Nice Cheer Investments [2012] and has made several appearances at first instance and in the Court of Appeal.

Recent examples of his work in the field of tax-related professional negligence include:

  • Advising on the defence of a claim of negligent drafting of an accumulation and maintenance settlement – finding reasons why the settlement in fact complied with section 71 and why, in any event, the drafting corresponded to standard practice at the time.
  • Advising on the merits of a claim in respect of advice given 12 years’ earlier that a particular tax avoidance scheme would work. Looking at the changes in the approach of the courts to the meaning of trading in the context of tax avoidance. Was the advice negligent at the time it was given – and was the duty to warn complied with?
  • Advising on, and drafting pleadings for, a claim against Guernsey trustees for failing undertake a tax mitigation strategy in advance of the life tenant’s death.
  • Advising on claims in negligence in respect of losses incurred by reason of utilising inappropriate employee benefit trust structures (this was the essential complaint in Barker v Baxendale Walker (above), and in other cases.

Recent issues on the taxation of pension schemes on which he has advised include:

  • the potential loss of fixed protection due to inadvertent auto enrolment,
  • the loss of fixed protection as a result of buying out using deferred annuities,
  • the risk of unauthorised payment charges as a result of compromises of pension disputes, which result in backdated benefits being paid as lump sums and
  • the liability of a SIPP provider in respect of alleged unauthorised payments stemming from the purchase by the SIPP of shares from the member at an overvalue.

He also advised on and represented the member of a scheme which was the subject of a pension liberation exercise, and successfully had the key part of the transaction set aside, thereby reducing tax exposure.

Recent examples of tax advice to charities include:

  • How the interim managers of a charity which had been involved in a tax avoidance scheme should respond to the prospect of an appeal against HMRC’s refusal to allow gift aid on the contributions to the scheme (see The Cup Trust [2016]), where his Opinion was extensively cited by the Court as justifying the interim managers’ approach).
  • Advising a charity in respect of potential abuses of the gift aid regime, and assisting it in devising a new structure for receiving donations.

Advising the donor to an EU based charity on securing recognition by HMRC of that charity for UK tax purposes.