Rupert Baldry KC

Recent cases

Gallaher (the last direct tax case to be referred to the CJEU); Coal Staff Superannuation Scheme Trustee Ltd (Supreme Court) Societe General (CJEU); Bluecrest Capital Management (Cayman) Ltd (CA); Jazztel (CA); William Good (CA), Mercy Global Consult Ltd (CA).

Corporation Tax

Rupert’s practice covers all aspects of corporation tax.  The following examples of some of his cases illustrate the range of his experience.

O’Neill & Brennan (HC)

Small companies’ relief.  Whether associated company trading. Meaning of “business”.

Countrywide (FTT)

Whether sale of ‘customer information’ capital or income. Whether transaction characterized as sale of goodwill or use of retained goodwill.

Amalgamated Metals (FTT)

Whether sum paid in settlement for a claim for lost interest liable to corporation tax under the loan relationship rules. Analysis of “non-trading loan relationship”.  Meaning of “money debt”.  Whether sum taxable as miscellaneous income.

Turners (FTT)

Whether expenditure on items of machinery can qualify for a revenue deduction on the basis of the non-statutory ‘renewals’ basis.

Coin a Drink (FTT)

Whether taxpayer company liable to corporation tax on repayment of VAT.

Gallaher (CJEU)

Whether the group transfer rules for ordinary assets and intangible fixed assets were compatible with EU law in imposing an immediate charge on assets leaving the UK.

JDC Services (HC)

Construction industry scheme.  Whether refusal to issue CIS certificate unlawful in light of past compliance record.

JD Wetherspoon (CA)

Capital allowances. Whether ‘decorative’ items installed in pubs qualified as “plant”.  Meaning of expenditure incurred “incidental to the installation of machinery and plant” within section 66 CAA 1990.

Small v Mars (HL)

Application of GAAP to depreciation of stock accounting adjustments.

FII GLO (SC)

Whether the UK’s system for ACT and FII were incompatible with EU law and the extent to which any incompatibility could be avoided by a conforming interpretation.

Thin Cap GLO (CA)

Thin capitalisation.  Whether the UK regime was compatible with EU law.

BCM Cayman (CA)

Thin capitalisation.  Whether HMRC could disallow interest on related party loan.

Societe Generale (CJEU)

Whether system of relieving juridical double taxation arising from overseas withholding tax compatible with EU law.

Bluecrest (CA)

Tiered partnerships.  Whether corporate general partner of non-resident limited partnership taxable as partner of UK limited partnership.  Whether profits allocated to non-resident limited partnership taxable on general partner only or on all members of non-resident limited partnership.

Loan to non-resident corporate partner to invest in partnership.  Whether deductible as trading loan relationship or otherwise.   Whether loan part of partner’s UK trade.

Application of transfer pricing rules to associated persons.

Application of OECD guidance on the arm’s length principle.

Income Tax

Rupert’s practice covers all aspects of income tax.  The following examples of some of his cases illustrate the range of his experience.

Dimsey v Allen (HL)

Transfer of assets abroad.  Effect of statutory deeming provision on the transferee to whom the income actually arises.  Whether the deeming relieves the transferee of any liability to income tax.

Crystal Palace (HC)

Status of bonus paid to football manager.  Duty of club to operate PAYE.

Jones v Garnett (HL)

Application of the settlements legislation to family companies. Meaning of “arrangements” in section 623 ITTOIA.

Peter Clay Discretionary Trust (CA)

Deductibility of trustee’s expenses for income tax purposes under section 686(2AA) ICTA.  Whether a single fee for the expenses of management of a discretionary trust relating partly to income and partly to capital could be split.

Good (CA)

Whether individual “entitled to” miscellaneous income where income assigned to satisfy obligation arising under a tax avoidance scheme.

Cotter (HC)

Circumstances in which taxpayer can make a valid loss relief claim by way of an amendment to self-assessment return.  Whether matter can be raised in collection proceedings.

BT Pension Scheme (CA) (CJEU)

Whether lack of tax credit for foreign dividends and foreign income dividends received by UK pension fund gave rise to a breach of the free movement of capital.

Coal Staff Superannuation Scheme (SC)

Whether pension fund entitled to a payment of income tax as a remedy for alleged incompatibility of the UK’s treatment of manufactured overseas dividends with EU law.

Dextra (HL)

Employee benefit trusts.  Whether payments by employer to trust “potential emoluments” within section 43 FA 1989.

Future (FTT)

Film scheme.  Whether activities trade or “special leasing”.

Bluecrest (CA)

Partner incentive scheme.  Whether awards of ‘special capital’ to partners taxable as income.  Basis of partnership taxation.  Whether sales of occupation income rules apply.  Meaning of “occupation”.

Henderson (FTT)

Domicile.  Whether individual acquired of domicile of choice outside UK.  Whether individual subsequently abandoned domicile of choice.  Tests for acquisition and abandonment considered.

Director of the Assets Recovery Agency (HC)

Proceeds of crime.  Application for freezing injunction.

Advisory

Pension funds.  Unauthorised payments.  Whether scheme sanction charge arising.

Capital Gains Tax

Rupert’s practice covers all aspects of capital gains tax.  The following examples of some of his cases illustrate the range of his experience.

Robson v Mitchell (CA)

Whether money lent to close company a “qualifying loan” within section 253 TCGA.  Whether money lent “used…wholly for the purposes of a trade”.  Characterising a ‘replacement’ loan.

Kellogg Brown & Root (CA)

Whether connected party loss within section 18(3) TCGA.  Meaning of “control” in section 286.  Meaning of “group” in section 286(b).  Effect of conditional contract on time of disposal under section 28 TCGA.

Ardagh Group (CA)

Sale of company for contingent consideration based on available pre-entry losses.  Effect of Schedule 7A TCGA. Whether ‘allowable capital losses’ under the contract.

Advisory

Tax consequences of rebate in respect of a Mansworth v Jelley claim.

Inheritance Tax

Rupert’s practice covers all aspects of inheritance tax.  The following examples of some of his cases illustrate the range of his experience.

St Barbe Green (HC)

Whether life tenant can deduct liabilities in free estate against value of settled property.  Meaning of “property” in section 49(1) IHTA.

Phizackerly (SCs)

Meaning of “property derived from the deceased” in section 103 FA 1986. Relationship between exemptions for inter-spouse transfers and “maintenance” under section 11 IHTA.

Accuro (FTT)

Excluded property status of settlement settled by non-domiciliary who becomes UK domiciled.

Whether payment made or accepted on a view of the law generally received or adopted in practice within section 255 IHTA.

Thorogood (HC)

Application by third party to join IHT appeal.  Whether section 255 IHTA gave applicant a right of appeal.

Barclays Wealth (CA)

Whether the exercise by the trustees of a discretionary power of appointment to declare a new trust gave to a “settlement” for the purposes of sections 81 and 82 of the Inheritance Tax Act 1984

VAT

Rupert’s practice covers all aspects of value added tax.  The following examples of some of his cases illustrate the range of his experience.

        Mercy Global

Whether an ‘umbrella’ company providing healthcare professionals who ultimately work for NHS Trusts itself makes exempt supplies of “medical care”.

Gambro Hospal (VATTrib)

Whether outsourced renal dialysis service exempt care or medical treatment.  Meaning of “institution”.

Secretary of State for Health (HC)

Whether a tenant liable to VAT following the landlord’s election to waive exemption.

Continuum (CJEU)

VAT treatment of outsourced financial support services.

Baxi (CA)

Whether goods supplied to customers under a loyalty scheme a separate supply of goods or part of an indivisible supply of marketing services.

Astra-Zeneca (FTT)

VAT treatment of retail vouchers provided to employees.

St Anns (FTT)

Whether pension trustee entitled to deduct as input tax the VAT on third party costs incurred to carry out its trustee services.

Capital Cranfield (VAT Trib)

Whether pension trustee entitled to deduct as input tax the VAT on third party costs incurred to carry out its trustee services.

Foxearth (HC)

Whether extension works carried out at nursing home qualified for zero-rating.  Meaning of “enlargement” and “extension” within Group 5 of Schedule 8.

Svenska (HL)

Continuous supplies of services.  When time of supply arose when branch joined a VAT group.

Whether demonstrator cars “capital goods” within the scope of the capital goods scheme.

ICAEW (HL)

Whether regulatory functions of professional body an “economic activity”.

Higher Education Statistics Association (HC)

Election to waive exemption in relation to property acquired under a TOGC.  Meaning of “relevant date” under the VAT (Special Provisions) Order 1995.

Retail schemes.  Whether “expected selling prices” of zero-rated takings included stock transferred on a TOGC.

Sinclair Collis (CJEU)

Whether grant of right to install and operate cigarette machine exempt.  Meaning of “licence to occupy”.

Musashi (CA)

Whether interest assessable where taxpayer subsequently provides evidence of export for zero-rating purposes.

Non-compliance with tribunal costs order. Application to set aside default costs certificate.

BT (HL)

Delivery service on sale of new car.  Whether single or separate supply.

Leicester University Students Union (CA)

Whether a student’ union an “eligible body” making exempt supplies related to education.

National Insurance Contributions and related matters

Rupert’s practice covers all aspects of NICs

Oleochem (Scotland) Ltd (SCs)

Application of NIC to workers operating in oil operations in North Sea oil.  Workers with foreign employer.  Meaning of “host employer”.  Meaning of “mariner”.

Smith v SoS for Work & Pensions (HL)

Meaning of ‘total taxable profits” in the Child Support (Maintenance and Support and Special Cases) Regulations

Customs Duties

Rupert’s practice covers all aspects of customs duties

V-Tech (CJEU)

Classification.  Whether electronic keyboard programmed with activities for children “toy” or “game”.

Omya UK (VATT)

Classification. Claim for repayment of duty wrongly classified.  Application of 3 year limitation period.

S&S Services (VATT)

Appeal against post-clearance demands in respect of fruit juice imported from Israel.  Application for disclosure against European Commission.

Excise Duties

Rupert’s practice covers all aspects of excise duty.

Greenalls (HL)

Whether warehouse keeper liable for excise duty where excise goods in duty suspension were diverted in transit.

DCC Realisations

Whether excise duty point arose on cider and made-wine held on premises on company going into administration.

B&M Retail (CA)

Whether Revenue can assess company for excise duty on goods received which were previously released from a tax warehouse.  Meaning of “released for consumption”.  Whether more than one excise duty point arose.

Stamp Duty

Keston (HC)

Sub-sales. Whether chargeable consideration included consideration moving from sub-purchaser.

Jazztel (CA)

Claim for repayment of SDRT levied contrary to EU law. Whether, the taxpayer had “discovered” the mistake, or could with reasonable diligence have discovered it, for limitation purposes.

DP World (CA)

Principles to apply on a reference of a valuation issue to the Upper Tribunal (Lands Chamber).

Aggregates Levy

Aggregates Industries (FTT)

Whether aggregate used in production of asphalt used in “industrial processes” for the purposes of the Aggregates Levy Regs.

Northumbrian Water Ltd (FTT)

Whether construction works to raise level of a reservoir constituted “commercial exploitation” of the aggregate.  Meaning of the aggregate becoming “part of the land at the site from which it was won”.

Hochtief (FTT)

Whether construction works to build a hydro-electric dam constituted “commercial exploitation” of aggregate used to build dam.

Northumbrian Water Ltd (UT)

Challenge to HMRC’s registration of premises.  Whether Tribunal’s jurisdiction appellate or supervisory.

Hanson Quarry (FTT)

Whether works “commercial exploitation”.

Landfill Tax

Churchill Enviro

Disposal at unauthorized site. Penalties.

Cleanaway Ltd

Lower rate.  Mixed loads.  Whether non-qualifying material “incidental”.  Whether visual or weight-based test.

Publications

Editor, International Trust & Estate Law Reports

Co-author, Trusts and UK Taxation

Directory Quotes

Corporate Tax Ranking: Band 2

“Very analytical in his approach and a very good technical lawyer.” “He is very friendly, which makes him pleasant to work with.” (2022)

“Excellent on the technical front, he offers really good analysis and is someone you can have sensible discussions with.” “He conducts litigation very fairly.” (2021)

“A persuasive and immensely eloquent advocate.” “He’s very commercial and pragmatic.” (2020)

Tax: Indirect Tax Ranking: Band 2

“He has a good grasp of the more detailed and complex issues in a case.” (2022)

“A very fair opponent who charms judges and doesn’t make silly points.” (2021)

“A particularly clever VAT lawyer.” “He explains things well and his advice is very easy to understand.” (2020)

Tax: VAT

Ranking: Leading Silk, Tier 3

“Extremely knowledgeable and one of the few barristers in the tax Bar well versed in the environmental taxes. Extremely able and pragmatic in his advice.” (2022)

“Rupert is incredibly cool and collected under pressure. He is clear in his advice and works in a collaborative manner. A great advocate in court.” (2021)

“He is a joy to work with and clients love his pragmatic straightforward advice.” (2020)

Tax: Corporate

Ranking: Leading Silk, Tier 3

“Extremely knowledgeable and one of the few barristers in the tax Bar well versed in the environmental taxes. Extremely able and pragmatic in his advice.” (2022)

“Rupert is incredibly cool and collected under pressure. He is clear in his advice and works in a collaborative manner. A great advocate in court.” (2022)

“He is extremely bright and user friendly.” (2020)

Private Client: Personal Tax Ranking: Leading Silk, Tier 2

“User and client-friendly, with the ability to give incisive and clear advice as to the strengths and weaknesses of a position. Experienced in terms of HMRC practice and helpful in terms of practical as well as technical advice.” (2022)

“Is clear and understandable even on diffi cult and complex tax points and, although confident in terms of advice, he is not overly bullish.” (2021)

“Is user-friendly, pragmatic and sharp.” (2020)

Memberships

VAT Practitioners Group

Revenue Bar Association

London Common Law & Commercial Bar Association

Career & Education

CAREER

Called 1987, Middle Temple

Attorney General’s panel of Junior Counsel (2001-2005)

Silk, 2010

EDUCATION

London University (BA Hons, 1st)

City University (Diploma in Law)

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