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 fifth 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.
Over the past year the focus on perceived cross-border abuses has continued with action by the European Commission on past tax rulings in Ireland, Luxembourg and Belgium, and the BEPS reaching a crescendo in the announcement of a ‘diverted profits tax’ to impose an additional tax in the UK when it is felt that a multinational is subject to too little corporation tax even in an EU context. The general targeting of cross-border tax avoidance now has European legislation in the Anti-Tax Avoidance Directive, which came into force in June 2016 with promises of more to follow. The absence of much 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 being felt.
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.
Simon Whitehead is a founding partner of Joseph Hage Aaronson LLP, a specialist London litigation firm, where he practises in tax litigation. He was previously the partner in charge, international, of Dorsey & Whitney, and head of its award-winning tax litigation team. He has practised exclusively in tax litigation in the UK for over 15 years. He is best known for actions against the UK Revenue for the recovery of taxes claimed to have been overpaid on the basis of a breach of EU treaty rights, or the terms of double taxation conventions. He has represented taxpayers in most of the seminal cases in the area in the UK, including the Marks & Spencer group relief action (C-446/03 Marks & Spencer v. Halsey) and the Boake Allen case, which was the leading case on the interpretation of the non-discrimination clause in double taxation treaties. He is top rated for tax litigation by both leading UK rating publications, Chambers and The Legal 500, and has won many awards. His team has ranked top for contentious tax in the Chambers UK Guide since 2008, and he is quoted as having ‘boundless energy and enthusiasm’, as ‘very creative’, ‘excellent on case management’ and ‘a recognised leading authority in the areas of EU tax law’. His team has also ranked top for tax litigation by The Legal 500 since 2009, with Simon quoted as being ‘relentless in achieving the best outcome for his clients’.
He was selected as the lead and test case solicitor in almost all the current group litigation orders in the Chancery Division of the High Court of England and Wales, in which multinational company groups challenge the lawfulness of various UK corporate tax imposts, including the ACT Group Litigation; the Loss Relief Group Litigation; the CFC and Dividend Group Litigation; the Thin Cap Group Litigation; the FII Group Litigation; and the ROSIIP Group Litigation.
Simon regularly contributes articles to specialist tax publications such as Taxation, Tax Journal and International Tax Review.
The publisher acknowledges and thanks the following for their learned assistance throughout the preparation of this book: