Kevin Prosser KC

Kevin Prosser KC

"Kevin is extraordinarily able at grasping all the facts of a matter very quickly and finding the answer which solves the problem and then implementing that solution."

Legal 500

"Kevin has no weaknesses. He is extraordinarily quick in grasping all the facts and finding the particular answer which solves the problem and then effecting it."

Legal 500

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

Chambers & Partners
  • 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:

Barclays Bank PLC v HMRC – Kevin, leading James Henderson of chambers, has recently appeared in the FTT in this case concerning the corporation tax treatment of the bank’s issue of £3 billion debt instruments to Qatar and Abu Dhabi at the height of the 2008 financial crisis.

Euromoney v HMRC 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 charge to corporation tax in respect of the $26m cash, the buyer agreed to issue $26m worth of preference shares instead. HMRC assessed the taxpayer to corporation tax 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 corporation tax. The FTT allowed the taxpayer’s appeal on the ground that although there was avoidance it was not a “main purpose” of the arrangements of which the exchange formed part. Kevin succeeded in HMRC’s appeal to the Upper Tribunal, and also (very recently) in HMRC’s appeal to the Court of Appeal. It is understood that HMRC are not seeking to appeal to the Supreme Court. This case is one of the very few instances of the taxpayer succeeding in a tax avoidance case.    

Inmarsat plc v HMRC – Kevin, leading Barbara Belgrano of chambers, appeared in the Court of Appeal in this case concerning entitlement to capital allowances on the cost of launching satellites into space. One of the issues in the case, and the only one of general importance, concerned the correct interpretation of the concept of incurring expenditure on the “provision” of machinery or plant. Inmarsat had succeeded to a trade of operating leased satellites, and claimed to be entitled to writing down allowances under s.78 CAA 1990 (succession to trade), in circumstances where the predecessor had incurred capital expenditure on launching satellites which operated as plant. The FTT had held that because the satellites did not belong to the predecessor, the expenditure had not been incurred on the “provision” of plant.  The Upper Tribunal and Court of Appeal both disagreed, but held that s.78 did not apply on other grounds. The Supreme Court refused permission to appeal.

BlackRock Holdco 5 LLC v HMRC – Kevin, leading David Yates KC of chambers, appeared in the Upper Tribunal 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. The FTT allowed LLC5’s appeal on both grounds, but HMRC appealed successfully to the Upper Tribunal. The case is going on to the Court of Appeal in March 2024.

Credit Suisse – Kevin, again leading David Yates KC of chambers, 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 a procedural ground, namely that HMRC had failed to open an enquiry into the bank’s return (and therefore could not issue a valid closure notice) and were out of time to issue a valid discovery assessment. Therefore HMRC could not charge any tax even though the tribunal agreed with HMRC that tax was in principle chargeable.  HMRC did not appeal against the FTT’s decision. This underlines Kevin’s strong reputation for big-ticket and highly unusual, ground- breaking matters, particularly involving the financial services sector.

Kevin has also recently appeared in Hong Kong in two tax cases. The first, China Mobile v CIR, was heard by the Hong Kong High Court, and concerned the deductibility of a lump sum payment made by China Mobile as the successful bidder at an auction of certain frequency bands. Kevin, appearing for the revenue, contended successfully that the payment was not deductible because it was of a capital nature.  The second case, heard by the Hong Kong Board of Review, concerned the taxability of trademark royalties received by an offshore company from Hong Kong resident members of the group. Kevin, again appearing for the revenue, successfully claimed that the offshore company was resident in Hong Kong and therefore was liable to Hong Kong profits tax on the royalties.  These cases demonstrate the extent of Kevin’s international reputation and practice.

Kevin is also appearing for the Hong Kong Revenue in another case, about whether certain payments are of a capital or revenue nature, in January 2024.

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 Properties v Rossendale BC (business rates, unoccupied properties; tax avoidance)
  • Court of Appeal; Brains Disorders (tax avoidance); Blackwell (CGT, deductibility of expenditure); Bristol & West (tax avoidance, closure notice).
  • FTT:  Wilhunter (corporation tax, oil contractor activities); Embiricos (whether the taxpayer’s domicile status should be heard as a preliminary issue).

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:

PIVA– Kevin has recently advised a well-known company about the application of the Postponed Import VAT Accounting (“PIVA”) Regulations to the company’s importation of goods, and in particular whether, although it was not the owner of the goods at importation, the company was entitled to apply the PIVA Regulations on the basis that it has the right to dispose of the goods as if it were the owner.  HMRC contend that the PIVA Regulations do not apply and therefore that the company has incurred an import VAT liability of over £100m. 

N Brown Group plc v HMRC – Kevin appeared for N Brown before the FTT in a case 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 mad a taxable supply of clothing and also an exempt supply of credit. There were a variety of costs connected with the online sale of clothes, such as the costs of click-through advertising of clothing, and the issue was whether, and if so to what extent, these costs were attributable to exempt supplies of credit.

Wakefield College v HMRC – Kevin appeared for Wakefield College in the Court of Appeal, in this important VAT case. The case concerned a narrow issue, whether the construction costs of a new college building were zero rated on the ground that the building would be used otherwise than for the purposes of a “business” carried on by the college, but involved the much broader question of how to decide whether a particular activity constitutes an “economic activity”, and therefore a “business” for VAT purposes. Having lost in the FTT, the taxpayer brought Kevin in for the appeal to the UT, which he won. The case was then referred back to the FTT to reconsider its decision, which Kevin again won. However, the case once more went up to the UT which allowed HMRC’s appeal. The Court of Appeal dismissed the college’s appeal, but on different grounds, clarifying the two-stage test of when an economic activity is carried on.

ING Intermediate Holdings Limited v HMRCKevin appeared for ING bank in the Court of Appeal. The issue was whether, when the bank provided a “free” deposit-taking service, for VAT purposes it provided the service for consideration which was capable of being expressed in a monetary form.

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 Properties v Rossendale BC (business rates, unoccupied properties; tax avoidance)
  • Court of Appeal; Brains Disorders (tax avoidance); Blackwell (CGT, deductibility of expenditure); Bristol & West (tax avoidance, closure notice).
  • FTT:  Wilhunter (corporation tax, oil contractor activities); Embiricos (whether the taxpayer’s domicile status should be heard as a preliminary issue).

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:

Embiricos – Kevin, again leading Barbara Belgrano of chambers, appeared in the Court of Appeal in this important case concerning the scope of HMRC’s power to issue a partial closure notice (“PCN”). The taxpayer had claimed the remittance basis in his tax return, on the ground that he was not domiciled in the UK.  HMRC opened an enquiry into the return, and formed the view that the taxpayer was UK domiciled, but refused to issue a PCN to that effect, contending that a PCN can only be issued if the amount of tax payable is known, whereas in this case HMRC had not yet quantified the tax payable if the taxpayer was indeed UK domiciled. The Court of Appeal agreed with HMRC that a PCN cannot be issued in those circumstances, and the Supreme Court has recently refused the taxpayer permission to appeal.

HFFX – Kevin, again leading David Yates KC of chambers, appeared in the Upper Tribunal on behalf of a hedge fund, structured as a LLP, concerning the taxation of individual members’ profits, in circumstances where profits were allocated to a corporate member of the LLP which invested the profits and subsequently invested the proceeds in the LLP as special capital and finally allocated the special capital to individual members. HMRC argued that the individual members were taxable on the profits allocated to the corporate member, on the ground that they had a right to share in those profits within the meaning of s.850 ITTOIA 2005; alternatively, HMRC argued that the individual members were taxable on the special capital  allocated to them, either because the allocation was miscellaneous income taxable under s.687 ITTOIA 2005 or because the sale of occupation income provisions in chapter 4 of Part 13 ITA 2007 applied. The FTT decided in favour of the individual members on the s.850 issue, but in favour of HMRC on the miscellaneous income and sale of occupation income issues. The case has gone on to the Upper Tribunal, whose decision is awaited.

Euromoney v HMRC 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, the buyer agreed to issue $26m worth of preference shares instead. 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 taxpayer’s appeal on the ground that the CGT avoidance was not a “main purpose” of the arrangements of which the exchange formed part. HMRC appealed unsuccessfully against the FTT’s decision to the Upper Tribunal. This case is one of the very few instances of the taxpayer succeeding in what HMRC consider to be a tax avoidance case.

Jones Bros & Britannia Hotels v HMRC – Kevin appeared in the FTT on behalf of both taxpayer companies, which had participated in arrangements called the Growth Securities Ownership Plan (“GSOP”) whereby, instead of paying bonuses to their employees, contracts were entered into under which a payment would be made to the employee if a performance “hurdle” was met. The companies contended that the contracts were “contracts for differences” within the meaning of s.420 ITEPA 2003 with the result that payments made to the employees were not subject to income tax or NIC, but only to CGT. However, HMRC contended that the arrangements were a tax avoidance scheme which did not work. The FTT agreed.

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 Properties v Rossendale BC (business rates, unoccupied properties; tax avoidance)
  • Court of Appeal; Brains Disorders (tax avoidance); Blackwell (CGT, deductibility of expenditure); Bristol & West (tax avoidance, closure notice).
  • FTT:  Wilhunter (corporation tax, oil contractor activities); Embiricos (whether the taxpayer’s domicile status should be heard as a preliminary issue).

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.”

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

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

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.”

“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.”

“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.”

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.”

“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.”

“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.”

The Legal 500

Tax: VAT
Ranking: Leading Silk, Tier 2

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

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

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

Tax: Corporate
Ranking: Leading Silk; Tier 1

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

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

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

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

‘Solves problems extremely quickly.’

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

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

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.”

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.”

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.”

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)

Related judgments

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