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University: St John’s College, University of Oxford
Tax barristers litigate and advise in a wide variety of matters and disputes in which tax issues arise. Taxes include those that you will have heard of, such as income tax, capital gains tax, corporation tax, inheritance tax, Stamp Duty Land Tax and VAT, as well as those with which you may be less familiar, such as customs and excise duty, landfill tax and diverted profits tax. Tax issues arise in a variety of contexts including corporate reconstructions, insolvency, estate planning and trust management, land transactions, claims for judicial review and restitution, tribunal appeals, criminal and family proceedings, and references before the Court of Justice of the European Union.
Ben Elliott has been a tenant at Pump Court Tax Chambers since he completed pupillage in 2014 and has a broad practice involving every type of tax and proceedings including tribunal appeals, judicial review, professional negligence, restitution, insolvency and even criminal proceedings, and he has appeared before every civil court from the county court and First-tier Tribunal to the Supreme Court.
“Before I started, there were a number of misconceptions that I had about life as a tax barrister,” he admits when asked how he decided which specialism to pursue when he was first called to the Bar. “Hopefully I can address these now to help readers understand what tax barristers really do on a day-to-day basis and why we love the work that we do.”
Litigation and advocacy
The first myth that he wants to dispel is that practising at the tax Bar involves very little time arguing cases in court. “Nothing could be further from the truth,” he explains. “Some senior tax barristers certainly have predominantly advisory practices, but this is becoming increasingly rare. For junior tax barristers, the vast majority of our work is litigation – or at least dispute resolution. We litigate both for taxpayers and for HMRC in cases that vary in value from £100 penalties to, literally, billions of pounds.”
One aspect that he particularly likes about the Tax Bar is that he gets a good mix of his own advocacy, as well as working on cases led by senior barristers: “You have the opportunity to learn from the best in the field while simultaneously developing your own skills – and sometimes the cases that you get to do yourself are just as complicated and valuable as others in which you are led.”
Variety of legal issues
Another misconception about tax law is that it is very narrow. “Of course, all of our cases are associated with tax in some way, but the reality is that tax law requires a barrister to be familiar with every other area of civil law,” explains Ben.
“For example, when analysing commercial transactions, issues of contract, partnership, company and insolvency law regularly arise. Meanwhile, property transactions require a detailed knowledge of land law, especially for Stamp Duty Land Tax. Private client cases generally concern trust law issues and international transactions give rise to significant questions of EU law – in fact, VAT, customs and excise duties are EU taxes. Since HMRC is a public body, claims for judicial review are also common; and, of course, if a professional makes a mistake then complicated claims for negligence often follow.”
He points out that “the range of legal issues that arise in tax cases is demonstrated by the fact that many of the leading cases in other areas of law are actually tax cases. For example, Pepper v Hart is a leading statutory construction case, Vandervell v IRC is an important trusts case, and Unilever is the key case on legitimate expectation in judicial review – these are all tax cases. Overall, it is the variety of legal issues that arise in a tax practice that I find refreshing – the only constant is that those issues will rarely be straightforward!”
What does it take to be a tax barrister? You certainly don’t need a background in tax to secure pupillage at a tax chambers. “Most junior members of our chambers had no experience at all of tax law before they started their pupillage and had only done a law undergraduate degree or GDL,” says Ben. “Among juniors at Pump Court, the split between law graduates and those who converted via the GDL is roughly 50-50 – and unlike in some other chambers, it is rare for pupils to have done a postgraduate degree or PhD in law. Tax legislation is too broad and varied for anyone to know anything but a fraction of it, so the most important skill of a junior tax barrister is to be able to get on top of new areas of law and legislation very quickly. Personally, I find being asked to advise or litigate an area that you have no experience of – or indeed which may never have been considered by the courts in detail before – to be one of the most satisfying parts of the job.”
You also do not need to be good at maths to succeed in this area of law. “Our cases are generally determined on points of principle – ‘all or nothing’ issues’,” he explains. “For example, ‘if the correct statutory construction is A then this income/receipt is taxable,’ or ‘if B falls within this statutory description then it is exempt from tax’. There is rarely a dispute about the amount that is due once the points of principle have been determined – and even when they do arise, they are generally matters for the accountants to resolve.”
Ben emphasises that there are no special qualifications needed to be a tax barrister. “Like any other barrister, a tax practitioner has to be bright, hard-working, practical and able to absorb and analyse considerable volumes of information very quickly”, he explains “What perhaps sets the Tax Bar apart is that you also have to be very creative – many of your cases will involve litigating on issues and legislation that have never been before a court before, so you have to be able to form your own views and arguments. Equally clients seek practical answers to their tax problems so an adviser has to be able to come up with solutions that are not only legally correct but are also commercial.
The range of legal issues that arise in tax cases is demonstrated by the fact that many of the leading cases in other areas of law are actually tax cases.
For those whose interest has been piqued, Ben sums up the appeal of this diverse area: “Overall, the Tax Bar is the place for those who like challenging and varied legal and factual problems. This area is very rewarding, both intellectually and financially, and is far more accessible than most applicants think. If you are attracted by diverse and challenging legal problems, a mixed litigation and advisory practice, and having the opportunity as a junior to conduct your own cases while also working with some of the best minds in the legal profession, you should seriously consider applying to the Tax Bar.”