Kevin Prosser KC

Kevin Prosser KC

"Kevin is an incredibly smart technician and an effective advocate who engages well with the courts."

Chambers & Partners 2022
  • Call: 1982
  • Silk: 1996

Overview

Kevin is the current Head of Chambers and is renowned as one of the tax bar’s most outstanding litigators, Kevin Prosser KC regularly appears in the Court of Appeal, Supreme Court and CJEU. He is consistently praised for his skill on his feet, analytical brilliance, and his commercial, imaginative, and creative approach to advisory work.

Kevin has a diverse tax practice and is the only barrister to be recognised as a “Star Individual” in all the Tax areas in Chambers & Partners.  His experience spans loan relationships, oil contractor activities, CGT and share exchanges, capital allowances, transactions in land, transactions in securities, transfers of assets abroad, business property relief from inheritance tax, drafting and taxation of onshore and offshore trusts, EBTs, personal  and corporate residence, domicile, diverted profits tax, taxation of mixed member partnerships, HMRC investigations, VAT exempt supplies, double tax treaties, NIC, and procedural issues relating to discovery assessments, information requests and closure notices.

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Corporate tax

“Kevin is an incredibly smart technician and an effective advocate who engages well with the courts.” “He is not only a very clever advocate but also quick to respond and very amusing.”

Recent work includes:

Inmarsat plc v HMRC – Kevin, leading Barbara Belgrano of chambers, appeared in the Upper Tribunal in this interesting and highly unusual case concerning capital allowances on the cost of launching satellites into space, which is going on to the Court of Appeal. The taxpayer is a British satellite company that offers global mobile services through the medium of thirteen geostationary telecommunications satellites. The large amount of money at stake, and the case’s potential to clarify some important areas of the Capital Allowances Code, mean that this is a dispute that will be carefully watched.

BlackRock Holdco 5 LLC v HMRC – Kevin, leading David Yates KC of chambers, appeared in the FTT in this case concerning the deductibility of interest paid by LLC5 in respect of intra-group loans to fund the purchase of the US business of Barclays Global Investors in 2009. HMRC contended that the interest was not deductible because (i) one of the main purposes of LLC5 being a party to the loan relationships was to obtain a tax advantage, so that s.441 CTA 2009 (unallowable purposes) applied; alternatively (ii) the loan relationships were provisions within the scope of the transfer pricing legislation, and independent enterprises dealing at arm’s length would not have entered into those or any other loan relationships. However, the FTT allowed LLC5’s appeal on both grounds. HMRC have appealed to the Upper Tribunal.

Credit Suisse – Kevin, again leading David Yates KC, represented this international investment bank in a case concerning the short-lived Bank Payroll Tax (popularly known as the Bankers’ Bonus tax). This only lasted for 6 months following the financial crash before being repealed, however in this time it collected a huge amount of tax. The case was heard in the FTT in 2019, and the FTT issued its decision in February 2020, allowing the bank’s appeal on the procedural ground (it disagreed with the bank on the substantive ground but since no closure notice had been issued HMRC could not charge any tax).  HMRC have decided not to appeal against the FTT’s decision, and so it is now final. This underlines Kevin’s strong reputation for big-ticket and highly unusual, ground- breaking matters, particularly involving the financial services sector.

Kevin also appeared in Hong Kong on behalf of the revenue in a tax case concerning the taxability of trademark royalties received by an offshore company from Hong Kong members of the group. The revenue claimed that the offshore company was resident in Hong Kong and therefore liable to Hong Kong tax on the royalties, and that various tax avoidance provisions should apply to deny the Hong Kong companies a deduction for their payment of the royalties.  The case demonstrates the extent of Kevin’s international reputation and practice.

Indirect tax

“Tenacious, extremely concise and a punchy advocate.” “He is friendly, straightforward and a barrister who gives frank and realistic advice.”

Recent work includes:

N Brown Group plc v HMRC – A matter concerning the supply of clothing by mail order on credit, and specifically the issue of how much of the input tax could be reclaimed. In the course of its normal business the client makes a taxable supply of clothing and an exempt supply of credit. There are a variety of costs connected with the online sale of clothes, such as the costs of click-through advertising of clothing – should part of these costs be attributable to exempt supplies of credit? In volume businesses like the client’s the difference is very substantial.

Wakefield College v HMRC – Kevin appeared for Wakefield College in the Court of Appeal, in this important VAT case. The case concerned the issue of whether the construction costs of a new building are zero rated for VAT purposes. It turned upon the question of whether the building will be used for non-business purposes, and therefore what the “business” of the college amounts to. This in turn raised issues of considerable significance for several industries. Having lost in the FTT, the taxpayer brought Kevin in for the appeal to the UT, which he won. The case was then referred down to the FTT to reconsider its decision, which Kevin once again won.

Private client

“A titan of tax who always seems to have the answer to a question at the tip of his fingers. His advice is spot on and he is very, very eminent.”

Recent work includes:

HFFX – Kevin, leading David Yates KC, appeared in the FTT on behalf of a major hedge fund concerning the taxation of individual members’ profits. The hedge fund is structured as an LLP, and the question is whether individual members of the LLP are taxable in respect of profits allocated to a corporate member of the LLP. The FTT decided in favour of HMRC, but the case is going on to the Upper Tribunal.

Euromoney v HMRC – In this case, the taxpayer had agreed in principle to exchange shares in the target company in return for an equity stake in the buyer plus $26m cash, but in order to avoid a CGT charge in respect of the $26m cash element of the consideration, the buyer agreed to issue $26m worth of preference shares instead of the cash. HMRC assessed the taxpayer to CGT on the entire consideration, on the ground that section 135 TCGA 1992 (share exchange treated as a reorganisation) was prevented from applying by section 137 because the exchange formed part of arrangements a main purpose of which was avoidance of CGT. The FTT allowed the appeal on the ground that the CGT avoidance was not a “main purpose” of the arrangements. HMC have appealed against the decision to the FTT.

Other recent examples of Kevin’s broad litigation practice include cases such as:

  • CJEU: Mercedes-Benz (VAT, hire purchase)
  • Supreme Court: UBS (income tax, employment income, tax avoidance); Hurstwood & Rossendale (business rates, unoccupied properties; tax avoidance)
  • Court of Appeal: Embiricos (partial closure notices); Brains Disorders (tax avoidance); Blackwell (CGT, deductibility of expenditure); Bristol & West (tax avoidance, closure notice); ING Direct (VAT, supplies for consideration)
  • FTT:  Wilhunter (corporation tax, oil contractor activities); GSOP (employment income; tax avoidance)

Directory quotes

The Chambers Guide

Corporate Tax
Ranking: Star Individual

“Kevin is an incredibly smart technician and an effective advocate who engages well with the courts.” “He is not only a very clever advocate but also quick to respond and very amusing.” (2022)

“Incredibly bright and knows tax inside out.” “He is very confident at dealing with the most difficult questions and highly impressive.” (2021)

“His judgement and ability to structure an argument before tribunal are terrific.” “He is an absolutely outstanding advocate.” (2020)

Tax: Indirect Tax
Ranking: Star Individual

“Tenacious, extremely concise and a punchy advocate.” “He is friendly, straightforward and a barrister who gives frank and realistic advice.” (2022)

“Good at using the right tone and pace in oral advocacy.” “Very approachable and flexible, he is prepared to listen to people’s opinions and discuss them.” (2021)

“Really effective and excellent at getting to the nub of the issue – he just brings the court along with him.” “A very, very powerful advocate.” (2020)

Tax: Private Client
Ranking: Star Individual

“He is a titan of tax who always seems to have the answer to a question at the tip of his fingers. His advice is spot on and he is very, very eminent.” (2022)

“Kevin is brilliant; he is extremely clever and gives extremely robust tax advice. You feel very safe with him as he knows exactly what to do. He knows the law and is incredibly robust.” (2021)

“Outstanding and a clear market leader. He is an excellent barrister who is very commercial, which clients like.” “A very accomplished barrister who is very calm in his approach.” (2020)

The Legal 500

Tax: VAT
Ranking: Leading Silk, Tier 2

‘He can simplify and get to the core of difficult tax issues.’ (2021)

‘Impressive at testing issues and ensuring that all aspects of an issue are understood; responsive.’ (2020)

‘Sufficiently experienced to have seen all of HMRC’s tactics in previous cases.’ (2019)

Tax: Corporate
Ranking: Leading Silk; Tier 1

‘He can simplify and get to the core of difficult tax issues.’ (2021)

‘Impressive at testing issues and ensuring that all aspects of an issue are understood; responsive.’ (2020)

‘He is very concise and does not talk for the sake of talking.’  (2019)

Private Client: Personal Tax
Ranking: Leading Silk, Tier 1 

‘Solves problems extremely quickly.’ (2021)

‘Is superb – he solves problems with incredible speed.’ (2020)

‘Comes up with brilliant answers in an unbelievably short period of time.’ (2019)

Chambers and Partners High Net Worth

Tax: Private Client
Ranking: Star Individual 

Kevin Prosser KC is “a consummate advocate before the Tax Tribunal,” says a source; “you know you’re in safe hands when Kevin is acting for you.” “Kevin is simply superb,” says an instructing solicitor, adding: “He grapples with the most difficult tax issues, comes up with an answer at amazing speed, and is always right.” Another reports that “I always think he’s extremely good value, based on his ability to get on top of real complexity. Within 40 minutes he’s figured everything out, despite you setting aside three hours for it.” (2022)

Kevin Prosser KC is “one of the greats in this world,” states a market source. An instructing solicitor remarks: “He is a titan of tax. He always seems to have the answer to a question at the tip of his fingers, his advice is spot on and he is very, very eminent. He somehow manages to cut through what can be very complex matters. He is absolutely excellent.” Another comments: “He has an extraordinary amount of knowledge and experience. He is also a quality cross-examiner – he is very, very user-friendly and considered.” (2021)

One fellow barrister remarks: “He is obviously truly excellent, one of the best lawyers around. There are not many that are better than him.” An instructing solicitor notes that “Kevin is brilliant; he is extremely clever and gives extremely robust tax advice,” continuing: “You feel very safe with him, he knows exactly what to do, he knows the law and is incredibly robust. You’re never left with any doubts when you instruct him.” Another source states: “He is astoundingly good, extraordinarily quick on the uptake and he always hits the spot.” (2020)

Memberships

  • Revenue Bar Association (Chairman 2009 – 2012)
  • London Common Law & Commercial Bar Association

Career & education

Career

  • Called 1982, Lincoln’s Inn
  • KC 1996
  • Recorder 2000 – 2015
  • Deputy High Court Judge 2008-2015
  • Chairman, Revenue Bar Association 2009-2012

Education

  • University College, London (1979 LLB)
  • St Edmund Hall, Oxford (1981 BCL)
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