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Hui Ling McCarthy

NOTABLE CASES

CJEU
Case C-28/16 MVM (written observations for UK)  VAT: deduction of input tax by holding company
 
Supreme Court
Eclipse 35 LLP v HMRC UKSC 2015/0102 (with Jolyon Maugham QC)  trading; application of Jones / Pendragon
WHA and Anr v HMRC [2013] UKSC 24 (with Roderick Cordara QC and Tim Eicke QC) – VAT; input tax recovery; application of Redrow LMUK

Privy Council
National Transport Authority v Mauritius Secondary Industry Ltd [2010] UKPC 31 (with Philip Baker QC) – incidence of VAT; commercial property

Court of Appeal
Wiltonpark v HMRC [2016] EWCA Civ 1294 (also acted in the UT [2015] UKUT 343 (TCC) and FtT [2014] UKFTT 115 (TC)) – VAT; finance exemption; meaning of “security for money”
ELS Group Ltd, R (oao) v HMRC [2016] EWCA Civ 663 (also acted in the UT [2015] UKUT 48 (TCC)) – VAT; BB 10/04 agency treatment for employment bureaux; misdirection
Project Blue v HMRC [2016] EWCA Civ 485 (with Malcolm Gammie QC) (also acted in the UT [2014] UKUT 564 (TCC) and FtT [2013] UKFTT 378 (TC)) – SDLT; application of s.75A FA 2003; alternative finance; art.14 and A1P1 ECHR - on appeal to the Supreme Court
R (oao) Derrin Brothers and ors v HMRC [2016] EWCA Civ 15 (also acted in the HCt [2014] EWHC 1152 (Admin)) - the legality of Sch.36 notices; whether there had been a breach of art.6 (fair trial) HRA 1998 - on appeal to the Supreme Court 
BMC Properties and Management Ltd v Valuation Officer [2015] EWCA Civ 1306 (also acted in UT [2014] UKUT 0093 (LC)) – “effective date” of an alteration to the non-domestic rating list
Esporta v HMRC [2014] EWCA Civ 155 (also acted in UT [2013] UKUT 173 (TCC) and FtT [2011] UKFTT 633 (TC)) – sports club membership fees; liability to VAT
MJP Media Services v HMRC [2012] EWCA Civ 1558 (with David Goldberg QC) (also acted in UT and FtT) – Loan relationships; partial waiver
Equity Trust (Singapore) Limited v HMRC [2012] EWCA Civ 192 (also acted in HC) – QROPS status
Drummond v HMRC [2009] STC 2206 (CA) (with Patrick Way) (also acted in HC and SpC)  CGT; taxation of second-hand life insurance policies
Underwood v HMRC [2009] STC 239 (CA) (with Patrick Soares) (also acted in HC and SpC) – CGT; land disposals

Upper Tribunal
HMRC v Zombory-Moldovan (t/a Craft Carnival) [2016] UKUT 433 (TCC) (also acted in the FtT [2015] UKFTT 245 (TC)) - VAT; land exemption
Bastionspark v HMRC [2016] UKUT 425 (TCC) - costs - on appeal to the Court of Appeal
Hewitt (VO) v Telereal Trillium [2016] UKUT 258 (LC) - rating; valuation of unoccupied office - on appeal to the Court of Appeal
Dyer v HMRC [2016] UKUT 381 (TCC) - CGT; share valuation
Acornwood and Ors v HMRC [2016] UKUT 361 (TCC) (also acted in the FtT [2014] UKFTT 416 (TC)) (with Jonathan Peacock QC) – lead case appeals in the Icebreaker litigation; partnership loss claims 
Hills v HMRC [2016] UKUT 189 (TCC) (also acted in FtT [2014] UKFTT 646 (TC)) – VAT; option to tax; sale of property from SIPP
Norseman Gold v HMRC [2016] UKUT 69 (TCC) - VAT treatment of UK holding company making supplies of management services to overseas subsidiaries - on appeal to the Court of Appeal
Tager v HMRC [2015] UKUT 663 (TCC) - Sch.36; disclosure and information powers
Xerox v HMRC [2015] UKUT 631 (TCC) (also acted in FtT) – Customs duties; classification of Xerox Solid Ink
R(oao Derry) v HMRC [2015] UKUT 416 (TCC) – whether carry back share loss relief claim “included in a return” – on appeal to the Court of Appeal
Lobler v HMRC [2015] UKUT 152 (TCC) – representing the CIOT – taxation of chargeable event gains on partial surrender of life policies; ECHR arguments; proportionality
Dhanak v HMRC [2014] UKUT 68 (TCC) (also acted in FtT) – availability of relief under s.392 ITEPA 2003; jurisdiction FtT
HMRC v Bosher [2014] UKUT 579 (TCC) (also acted in FtT) – CIS penalties; disproportionality
Leslie Smith v HMRC [2011] UKUT B16 (TCC) – preparation of accounts not in accordance with GAAP; negligence

High Court
R(oao) Ramdhun v Listing Officer [2014] EWHC 946 (Admin) – meaning of “self-contained unit”
Telfer v Sakellarios [2013] EWHC 1556 (Comm) (with Alan Gourgey QC) – liability to PAYE in the context of a claim for payment; “other payer”; tax presence
R (oao Tameside MBC) v Valuation Officer [2013] EWHC 450 (Admin) – correcting errors in non-domestic rating list
Equity Trust (Singapore) Limited v HMRC [2010] EWHC 2996 (Ch) – use of CPR Part 8 procedure; jurisdiction
Hammond and Ors v Coys of Kensington Ltd and Ors (ChD; Companies Court) – VAT; auctioneers’ margin scheme

First-tier Tribunal (or equivalent) where no onward appeal

Direct Tax
Salinger v HMRC [2016] UKFTT 667 (TC) - IHT and trusts; reversionary interest and excluded property rules
Paya Ltd and Anr v HMRC [2016] UKFTT 660 (TC) (with Michael Furness QC) - rights of a non-party to admit evidence 
Barrett v HMRC [2015] UKFTT 329 (TC) – CIS penalties; scope of FtT’s jurisdiction; proportionality
Dock & Let v HMRC [2014] UKFTT 943 (TC) – appeal against Sch.36 notice; whether HMRC enquiry opened in time
Rotberg v HMRC [2014] UKFTT 657 (TC) – CGT on share sale; jurisdiction of FtT; legitimate expectation
Wildin v HMRC [2014] UKFTT 459 (TC) – valuation of goodwill for CGT
Kishore v HMRC [2013] UKFTT 465 (TC) – income tax; single/separate trades; cessation of trade – on appeal to the Upper Tribunal
Pepper v SOCA [2013] UKFTT 654 (TC) (with Ian Smith) – contract settlements; scope of FtT’s jurisdiction
Trustees of David Zetland Settlement v HMRC [2013] UKFTT 284 (TC) – IHT; availability of BPR
Weiser v HMRC [2012] UKFTT 501 (TC) – UK/Israel double tax treaty; meaning of “subject to tax”
Curran v HMRC [2012] UKFTT 517 (TC) (with Jonathan Fisher QC) – interest relief; validity of settlement agreement
Crompton v HMRC [2009] STC (SCD) 504 – income tax treatment of compensation payment
Ashley v HMRC (2007) SpC 633 (with Patrick Way) – validity of a claim for EIS relief
The Trustees of the F D Fenston Will Trusts v HMRC [2007] STC (SCD) 316 (with David Goldberg QC) – CGT treatment of capital contributions to a US company

VAT and Duties
Tesco v HMRC [2017] (decision pending) (with Jonathan Peacock QC) - input tax recovery; application of Redrow and LMUK
Fortyseven Park Street v HMRC [2016] UKFTT 569 (TC) – land exemption; hotel or similar establishment - on appeal to the Upper Tribunal
Coinstar v HMRC 2016 UKFTT 610 (TC) - coin-counting machines; finance exemption - on appeal to the Upper Tribunal
Perenco Holdings v HMRC [2015] UKFTT 65 (TC) – Fleming claim for recovery of input tax on share issue expenses
African Consolidated Resources v HMRC [2014] UKFTT 580 (TC) – input tax recovery by UK holding company
Anna Scholz v HMRC [2013] UKFTT 353 (TC) – Customs duties; eligibility of goods for samples relief
Jones v HMRC [2012] UKFTT 503 (TC) – whether “use or disposal” of property restricted by s.106 agreement
1st Contact Limited v HMRC [2012] UKFTT 84 (TC) (with Barrie Akin) – place of supply; test of “belonging”
Loudwater Trade and Finance Ltd v HMRC [2012] UKFTT 37 (TC) – Customs duties; IPR
Westland Geoprojects (Holdings) Limited v HMRC [2011] UKFTT 408 (TC) – Customs duties; IPR
Enersys Holdings UK Ltd v HMRC [2010] UKFTT 20 (TC) (with Michael Conlon QC) – default surcharge; disproportionality
Gillan & Anor (t/a Gracehill Golf Course) v HMRC [2010] UKFTT 8 (TC) land exemption
Sophie Holdings Ltd v HMRC [2009] UKFTT 88 (TC) and [2009] UKFTT 189 (TC)  out of time assessments

SDLT
Crest Nicholson (Wainscott) and Ors v HMRC [2017] UKFTT 134 (TC) - SDLT avoidance; distribution in specie scheme; HMRC's determination and discovery powers
Frosh and Joyce v HMRC - SDLT avoidance; closure notice application - on appeal to the Upper Tribunal
Allchin v HMRC [2013] UKFTT 198 (TC) – application of s.45 FA 2003 to a novation
Vardy Properties v HMRC [2012] UKFTT 564 (TC) – SDLT avoidance; distribution in specie scheme
Neiland and others v HMRC [2011] EWLandRA 2011_0186 – Adjudicator to HMLR – effect of s.79(1) FA 2003

Rating
Pearl Group v Alexander (VO) [2015] No. 054017371184/537N05 – relevance of a restrictive covenant to the determination of rateable value

Hui Ling McCarthy

Called 2005

Tax Junior of the Year – Chambers Bar Awards 2013, nominated 2016

After reading Mathematics at Durham, Hui Ling began her career in corporate finance in 2001 at US investment bank Bear Stearns (fondly remembered) where she received a solid grounding in accounting, finance and the 100-hour working week.  She was first attracted to the tax bar under the erroneous belief that it was all numbers and Perry Mason. Albeit wrong on both counts, she was nevertheless undeterred and has rapidly built a strong contentious and advisory practice.

Hui Ling appears regularly in significant, high-value cases and is currently appointed to the Attorney General’s A Panel of Counsel.  Recent highlights include:

  • acting for the taxpayers before the Supreme Court in WHA (with Roderick Cordara QC and Tim Eicke QC);

  • representing the pension trustees in Equity Trust Singapore Ltd before the Court of Appeal involving tax and surcharges on £100m of funds under management. Lloyd L.J. described her submissions as “conspicuously able” [41];

  • acting for the 24 Claimants in Derrin Brother Properties in the High Court in relation to enquiries by the ATO with tax at stake of AUD 230m. Simler J. described her arguments as “admirable and forceful” [80];

  • securing what the Financial Times called “an important legal victory” for the government in the SDLT avoidance case, Vardy Properties; and

  • representing five lead case LLPs in the £300m Icebreaker litigation (with Jonathan Peacock QC).

    Hui Ling also advises a range of corporate and private clients in all areas of tax law with an emphasis on VAT, business and corporate taxation. Recent corporate work includes advising on capital allowances, company reconstructions and issues concerning loan relationships and derivative contracts.  Recent VAT work includes single/multiple supply and supply classification issues, partial exemption issues and Fleming claims. Recent private client work includes advising on tax issues concerning sportsmen, entertainers and event sponsors, partnerships, pensions, investments and remuneration.

    She has a particular interest in cases raising avoidance / abuse of rights, human rights or accounting issues as well as an interest in innovative tax dispute resolution processes, which led to her become chambers’ first CEDR accredited mediator in 2011.

    Hui Ling has served with the Officer Training Corps of the Territorial Army for 3 years. She has also run the 151-mile Marathon des Sables, rafted through the Amazon and swum the Channel in a relay, all of which she describes as “fun”, though noticeably only after the event.

Recommendations – Hui Ling is recommended as a leading junior in both Legal 500 and Chambers & Partners, where she receives particular acclaim for her skills in court:

"She is an extraordinarily accomplished advoate" and “She can respond creatively to the developments in a case as they arise” – Legal 500 2016 (Leading junior – Tax: Corporate (Band 1) and VAT (Band 1))

Identified as a "Most Highly Regarded Leading Junior" for Corporate Tax: "From 11 New Square, Hui Ling McCarthy is a "phenomenal talent" whose "straightforward and practical advice" makes her "one of the most sought-after juniors at the tax bar today".– Who’s Who Legal (UK Bar 2016)

Boasts a flourishing reputation across multiple areas of taxation law and is particularly commended for her work on VAT, business and corporate tax cases. She has done notable work on cases involving tax avoidance and human rights issues.
Strengths: “Fantastic and very industrious, she moves things along well. She has a great intellect and a great personality.”
Recent work: Involved in the Icebreaker litigation, acting for the taxpayer 
– Chambers and Partners 2016 (Tax)

Combines excellent client handling skills with the ability to apply her knowledge to great effect” – Legal 500 2015 (Tax: Corporate and VAT; leading junior – VAT (Band 1))

Singled out as “Most highly regarded leading junior” for Corporate Tax: Hui Ling McCarthy has “the greatest appetite for work of anyone at the tax bar” where she specialises in VAT, business and corporate taxation. Peers call her a “stand-out junior” who “is certain to take silk” – Who’s Who Legal (UK Bar 2015)

Has a growing reputation, with regard to both her litigious and advisory work. Her workload covers both direct and indirect taxation.
Expertise: “She takes her litigation very seriously. A good, straightforward but fierce opponent in court.”
Recent work: She acted for the taxpayer in the significant Icebreaker litigation, where she appeared in the lead-case appeals before the First-tier Tribunal concerning income tax relief based on trading losses
 – Chambers and Partners 2015 (Tax)

She immediately grasps the essence of an argument and sees its strengths and weaknesses” – Legal 500 2014 (Tax: Corporate and VAT; leading junior – VAT)

Hui Ling McCarthy [h]as been involved in a series of high-value cases and earns acclaim as a talented and sophisticated tax advocate. She is active in both direct and indirect tax disputes.
Expertise: “She has an analytical mind and is always very well prepared.”
Recent work: She acted for the taxpayer in the high-profile Icebreaker litigation, involving five appeals to the First-tier Tribunal concerning the availability of partnership trading losses for sideways loss relief –
Chambers and Partners 2014 (Tax)

Among the set’s highly regarded juniors… Hui Ling McCarthy is praised for her “excellent bedside manner” and “deep knowledge of the law” – Legal 500 2013 (Tax: Corporate and VAT; leading junior – VAT)

Clients were quick to praise Hui Ling McCarthy for her “intelligence, superb logical ability, articulacy, sheer hard work and charm.” She is well equipped to advise on a wide range of tax issues, and is well used to representing clients in court without a leader. She has recently been involved in some important cases concerning tax avoidance – Chambers and Partners 2013 (Tax)

“One of the more impressive junior members of the Revenue Bar… with an increasing presence in significant cases”, “Intellectually extremely good, with both deep and broad technical tax and procedural knowledge and excellent client management skills, especially in the speed with which she identifies the key logic in an argument”and “Painstaking, thorough, leaves no stone unturned and gives enormous confidence to the client” – Tax Journal 40 under 40 2011/12

Hui Ling McCarthy “leaves no stone unturned and is an excellent and clear advocate” – Legal 500 2012 (Tax: Corporate and VAT)

The highly rated Hui Ling McCarthy is held in excellent regard by clients, who praise her “ability to get round the academic element well and put points across in an effective and practical way.” She has a particular interest in tax avoidance and abuse as part of a broad practice that takes in VAT, capital gains tax and corporate taxation matters of many hues Chambers and Partners 2012 (Tax)

The “tenacious, thorough and reliable” Hui Ling McCarthy garners praise for her VAT expertise Legal 500 2011 (Tax: Corporate and VAT)

Sought after for her advocacy skills and “strong logical arguments”. She handles both direct and indirect taxation, with an emphasis on VAT and business and corporate taxation. She receives glowing praise for “coming up with complex technical arguments on the hoof” – Chambers and Partners 2011 (Tax)

Awards

Tax Junior of the Year  Nominated  Chambers Bar Awards 2016

Tax Junior of the Year – Chambers Bar Awards 2013

Shortlisted for the Chambers 100 UK Bar (Juniors) 2013

Shortlisted as a finalist for Young Practitioner of the Year – STEP Private Client Awards (2013/14)

Rising Star within Indirect Tax - Indirect Tax Awards (2012)

40 under 40 - Tax Journal (2011/12)

Shortlisted for Taxation’s Rising Star – Taxation Awards (2009)

Top 35 Under 35 – Private Client Practitioner (2009)


Publications

Include:

Former General Editor of Private Client Business (Sweet & Maxwell)
Contributor to VAT Commentary and Analysis (Sweet & Maxwell)
Tribunal Fees - a tax on justice (Tax Adviser, Management of Taxes Voice, Issue 1, January 2016)
Breaking the Deadlock – Resolving SME Tax Disputes by ADR [2012] PCB 185
The Tax Treatment of Damages and Compensation [2012] PCB 117
HMRC v Mayes: SHIPS that Pass in the Night – Reconciling Mayes and Drummond [2011] BTR 279
Navigating the Finance Act 2007 Penalty Regime: Three Case Studies [2011] PCB 210
Remittances and Overseas Transfers [2009] PCB 397
Protected Cell Companies and TCGA 1992 s.13 [2009] PCB 316
It’s Good to Talk – resolving disputes via ADR (Taxation Magazine, April 2012)
Tax Penalties – Convention Compliant? (Tax Journal, April 2009)
VAT ‘Abuse of Rights’: Imposing Limits (Tax Journal, November 2008)
Abuse of Rights: The Effect of the Doctrine on VAT Planning [2007] BTR No. 2 160

Conferences

Hui Ling has chaired or spoken at conferences organised by the CIOT, the IIT, STEP, the Oxford Centre for Business Taxation, LexisNexis and IBC amongst others.

Recent topics include:

  • The role of ADR in tax disputes

  • The taxation of compensation and damages

  • HMRC’s and the courts’ approach to avoidance / abuse of rights

  • VAT – partial exemption special methods and case law

  • Tax and accounting

  • Penalties and disproportionality


    Professional Memberships

    Chairman of the CIOT’s Dispute Resolution and Litigation Group. Member of the CIOT’s EU and Human Rights, Management of Taxes and CGT and Investment Income sub-committees; representing the CIOT on HMRC’s ADR Working Group.

    CEDR Accredited Mediator
    Association of Tax Technicians – Associate (ATT)
    Chartered Institute for Securities & Investment – Chartered Member (Chartered MCSI)
    Securities & Futures Authority – Qualified Representative
    Member of the Revenue and Chancery Bar Associations and the VAT Practitioners’ Group


Legal Information

Hui Ling McCarthy has professional liability insurance provided by the Bar Mutual Indemnity Fund Limited (of 90 Fenchurch Street, London EC3M 4ST) on a world-wide basis and subject to the terms of cover: see http://www.barmutual.co.uk/.

VAT number: 887981441