Malcolm Gammie CBE QCMalcolm Gammie CBE QC

Barrister
Date of call: 1997
QC: 2002
e-mail: mgammie@oeclaw.co.uk
Website: http://www.malcolmgammie.com
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Malcolm Gammie started his tax career in the City with Linklaters & Paines. After a period of tax policy work at the Confederation of British Industry, he was among the first lawyers to work in the tax field with a leading accounting firm. At KMG Thomson McLintock (now part of KPMG), he was the first Director of the firm's National Tax Office before becoming its Director of National Tax Services. In 1985 he returned to Linklaters & Paines and from 1987 to 1997 was one of its senior tax partners. He moved to the Bar in 1997 to concentrate on tax litigation and advisory work and took silk in 2002. Over his career, Malcolm has gained experience in most aspects of taxation and is noted as a leading practitioner in the commercial, European and international taxation fields.
 
Chambers UK

"Malcolm Gammie QC is a 'greatly respected thinker,' who has gained a great deal from his years as a tax partner at Linklaters.  He advises major corporate clients on all aspects of business tax, particularly within an international context.  Commentators note that his experience allows him to bring a wealth of practical knowledge to transactions involving highly detailed technical points." (2010)

"The 'cool headed' Malcolm Gammie QC is a high-profile tax barrister.  Some attribute his 'superb conference skills, preparation and precise analysis,' as well as his focus on 'highly technical advising matters,' to his background, although he is praised for his advocacy skills.  He provides international advice to an impressive client base." (2009)

Malcolm Gammie 'has a breadth of experience on transactions that not many silks can match.'  Many suggest that he was simply 'born to solve tax problems.'  His practice takes in a comprehensive array of UK, EU and international taxation. (2008)


Legal 500

"Malcolm Gammie QC 'uses his intellect and keen eye for detail to ensure that everything is done to the best possible standard.'  Gammie appeared in Prizedome in relation to the setting-off of pre-entry losses from chargeable gains, in the Court of Appeal." (2009)

"Malcolm Gammie is the 'first port of call for complex technical questions in the direct tax sphere.  He has outstanding Knowledge of tax law and a fine sense of judgment'. (2008)

"One Essex Court's tax guru Malcolm Gammie QC, enjoys an excellent reputation for his commercial nous.  He sits regularly as a Special Commissioner and as a VAT Tribunal Chairman.  Property taxation is also a strong suit." (2007)


SCOPE OF PRACTICE

Malcolm Gammie advises on all aspects of commercial, European and international taxation, for both incorporated and unincorporated entities, their shareholders and employees. He covers all the main direct taxes, value added tax, national insurance, stamp and other duties, and the related European and administrative law.

Malcolm's clients include many leading UK and foreign multi-national companies, banks, insurance companies and other financial institutions.

As a former senior partner in a leading City firm, he has been responsible for the taxation aspects of structuring, financing and implementing major international acquisitions and disposals, mergers, demergers and other reorganisations.

He has also handled negotiations in disputes with the Inland Revenue and HM Customs & Excise and he has experience as a solicitor in preparing cases, including handling both documentary and witness evidence.  At Linklaters, he had charge of cases before the General and the Special Commissioners and the VAT Tribunal as well as before both the High Court and the Court of Appeal.

Since joining the Bar he has represented taxpayers at all stages of tax appeals including the House of Lords.


Examples of recent cases

Experience

For the Taxpayer

  • Grace v. Revenue & Customs Commissioners [2009] EWCA Civ 1082
    Income Tax - Employment: Ordinary Residence; Long Haul Airline Pilots; UK & SA Residence; Presence for purposes of employment; Temporary Residents; s336 Income & Corporation Taxes Act 1988.
  • HBOS Treasury Services PLC (now HBOS Treasury Services Ltd) v. Revenue & Customs Commissioners [2009] UKFTT 261 (TC)
    Corporation Tax - Banking & Finance: Business Expenses; Derivatives Contracts; Interest Rate Swaps; Novation; Tax Avoidance; Value Shifting; Consideration of differing rights & liabilities; Applicability of Schedules 26 p28, P28(4) & p15(1)(b) Finance Act 2002; s30 Taxation of Chargeable Gains Act 1992.
  • Legal & General Assurance Society Ltd v. Revenue & Customs Commissioners [2009] UKFTT 225 (TC)
    Tax: Accounts; Business Income; Corporation Tax; Life Insurance; Pensions; With-Profits Policies; Memorandum Form 40 for With-Profits Part of Life & Annuity Fund; Status of Form for purposes of s83A(2) & s83A(2)(B) Finance Act 1989; Schedule 4 Insurance Companies (Accounts & Statements) Regulations 1996.
  • Jones v. Garnett (HMIT) [2007] 1 WLR 2030; [2008] Bus LR 425; [2007] 4 All ER 857; [2007] STC 153; [2007] ICR 1259 (HL)
    Tax: Treatment of Arrangements set up by Husband-and-Wife Companies; Dividends; Gifts; Income Tax; Settlements; Spouses; Tax Avoidance; Anti-Avoidance Legislation; s660A(1), s660A(6), s660G(1) Income & Corporation Taxes Act 1988.
  • Legal & General Assurance Society Ltd v. Revenue & Customs Commissioners [2005] STC (SCD) 350; [2005] STC (SCD) 707; [2006] STC 1763
    Tax - Insurance: Corporation Tax; Deductions; Double Taxation; Double Tax Relief; Life Assurance Companies; Pension Schemes; Tax Credits; Deduction in Computing Profits; Foreign Income; Deduction of Tax at source by Foreign Tax Authorities; Relief for Foreign Tax against Corporation Tax Income; s82(1)(a) Finance Act 1989; s790(4) & s436 Income & Corporation Taxes Act 1988.
  • Royal & Sun Alliance Insurance Group Plc v. Customs & Excise Commissioners [2003] 2 All ER 1073; [2003] STC 832; [2003] 23 EG 134 (CS); [2003] 1 WLR 1387
    Tax - Customs - Landlord and Tenant - Real Property: VAT; Lettings; Sub-Lettings; Leases; Sub-Leases; Attribution of Input Tax; Deductions; "Direct & Immediate Link"; Adjustments; Intended Taxable of Exempt Supply; Option to Tax; Election; Waiver of Exemption; Intention to Use Inputs; Use; Consumption; Time of Supply Rules; Vacant Unelected Period; Seperate and Successive Supplies; 26 and Schedule 10p2 VAT ACT 1994; r85 & 109 VAT Regulations 1995 SI 1995/2518.
  • Barclays Mercantile Business Finance Ltd v. Mawson (HMIT) [2002] STC 1068
    Tax - Banking and Finance - Commercial Law - Utilities: Corporation Tax; Capital Allowances; Allowable Expenditure; Trader's Object Irrelevant; Gas pipelines; Sale and Lease-Back; Finance Leases; Asset-Based Finance; Circular Transactions; Bills of Sale; Lease Agreements; Provision for the Purposes of Trade; Machinery or Plant; Financial Engineering; Artifically Inserted Steps; Legal Concept; Commercial Concept; Commercial; Transaction; Arm's Length; WT Ramsay Ltd v. IRC (1982); Westmorland Investments Ltd v. Macniven (2001); s24(1) & s75(1) Capital Allowances Act 1990.
  • The Equitable Life Assurance Society Ltd v. Oakes (HMIT); The Prudential Assurance Company Ltd v. Bibby (HMIT) [2000] STC 459
    Tax - Banking and Finance - Commercial Law - Company Law - Insurance - Pensions: Corporation Tax; Insurance Companies; Life Offices; Proprietary; Mutual; Life Assurance Qualifying Distributions; Shares; Own Purchase; Proceeds of Sale; Tax Credits; Distribution Element; Entitlement to Repayment of Credit; Computing Profits Chargeable to Tax; Proceeds taken into account; Charges to tax; Income minus expenses basis; Case I Schedule D; Notional Computation; dealers; Securities; s95(1), s95(2) and s436(1) Income & Corporation Taxes Act 1988; s83 Finance Act 1989; Statutory Interpretation; Taxing Statutes; Legislation; Literal Meaning; Intention; Perversity.
  • Commercial Union Assurance Company Plc v. Shaw (HMIT) [1999] STC 109 (CA)
    Tax - Commercial Law - Insurance: Double Tax Relief; "Wholly and Exclusively" Test; Forward Losses; Income; s797 Income & Corporation Taxes Act 1988; Corporation Tax; Loss; Profit.
  • Sun Chemical Ltd v. Smith (HMIT)
    Deduction of Yearly Interest - Settlement of Accounting Period by Agreement - Further Assesment - Whether Open to Amend.
As Expert
  • BNZ Investments Limited v. The Commissioner of Inland Revenue; Westpac Banking Corporation v. The Commissioner of Inland Revenue
    New Zealand - application of general anti-avoidance rule to cross-border tax arbitrage transactions (instructed by New Zealand Crown Law on behalf of NZ Inland Revenue Department).
For the Revenue
  • First Nationwide v. HMRC [2010] UKFTT 24 (TC)
    Corporation Tax; stock lending agreement; deduction for management expenses in respect of manufactured dividends; p1(1), schedule 23A ICTA; Income Tax (Manufactured Overseas Dividends) Regulations 1993; whether dividends paid by a Cayman Islands company out of share premium account are "dividends" and "overseas dividends"; s737A and s730A ICTA; whether a sale of preference shares and a subscription for preference shares is a sale and repurchase of securities.
  • Berry v. HMRC [2009] UKFTT 386 (TC)
    Income Tax; Tax Avoidance; Discounts; Gilt Strips; Computation of loss; Scheme designed to create excess of amount paid for the strip over the amount payable on transfer; Excess represented by "premium" for grant by taxpayer of call option; Whether option price to be added back in determining amount payable on the taxpayer's transfer; Yes; Appeal dismissed; p14A Schedule 13 FA 1996.
  • Blue v. HMRC; Yellow v. HMRC TC 109 [2009] STI 2201; TC 207 [2009] STI 3008
    Appeal - Procedure - Stay of Proceedings - Joinder of Appeals - Preliminary Issue as to Payment of National Insurance Contributions.
  • R (on the application of Reed Personnel Services PLC) v. HMRC; R (on the application of Reed Managed Services PLC) v. HMRC [2009] EWHC 2250 (Admin)
    Tax - Civil Procedure: Case Management; Dispensations; Judicial Review; Transferring Judicial Review Proceedings to Tax Tribunals; s65 Income Tax (Earnings & Pensions) Act 2003; s31A Senior Courts Act 1981.
  • PA Holdings Ltd & Anr v. Revenue & Customs Commissioners [2008] STC (SCD) 1185; [2009] UKFTT 95 (TC)
    Bonus Payments; Dividends; Emoluments; Employee Share Schemes; Income Tax; National Insurance Contributions; Payment of Dividend to Employees as Bonus; Taxable as Distribution or Emolument; s19 & s20 Income & Corporation Taxes Act 1988.
  • R (on the Application of Lower Mill Estate Ltd & Anr) v. revenue & Customs Commissioners [2008] EWHC 2409 (Admin)
    Administrative Law - VAT: Adjournment; Appeals; Judicial Review; Legitimate Expectation; Zero Rating; Legitimate Expectation of Zero Rating to VAT; Appropriateness of Adjourning Judicial Review pending determination of Appeal by VAT Tribunal.
  • Lower Mill Estate Ltd & Anr v. Revenue & Customs Commissioners [2009] UKFTT 38 (TC)
    VAT - Real Property: Agreements for Lease; Buildings; Composite Supplies; Construction Contracts; Leases; Sale of Land; Supply of Goods & Services; Zero Rating; Separate Supplies of Land and Construction of Holiday Home; Abusive Process; Tax Advantage; Distortion of Competition; Time of Supply Rules; Redefining Transactions; Essential Aim of Transactions; Directive 2006/112 on the Common System of VAT 2006.
  • Prizedome Ltd & Anr v. Revenue & Customs Commissioners [2008] STC 361 (Ch); [2009] STC 980 (CA)
    Tax: Capital Gains; Capital Losses; Corporation Tax; Groups of Companies; Restriction on Set Off of Pre-Entry Losses; Takeover of One Company by Another; s170(10) & Schedule 7A p1 Taxation of Chargeable Gains Act 1992.
  • Limitgood Ltd v. Revenue & Customs Commissioners [2007] STC (SCD) 635
    Tax: Capital Gains Tax; Capital Losses; Corporation Tax; Groups of Companies; Statutory Interpretation; Meaning of "Relevant Group" in Schedule 7A p1(6)(B) Taxation of Chargeable Gains ACT 1992; s179 Taxation of Chargeable Gains Act 1992; Schedules 7A p1, p6, p7, p9 & s170(10) Taxation of Chargeable Gains Act 1992.
  • Five Oaks Properties Ltd & 5 Ors v. Revenue & Customs Commissioners [2006] STC (SCD) 769
    Capital Gains Tax; Capital Losses; Corporation Tax; Groups of Companies; Pre-Entry Losses; Interpretation of Pre-Entry Loss Provisions; s170(10), s171A & Schedules 7A p1, p1(6)(b) Taxation of Chargeable Act 1992.
  • Electronics Ltd v. HMIT (SpC476) (2005) LTL 23/6/2005 (Unreported elsewhere)
    Tax: Commercial Activities; Groups of Companies; Loss Relief; Terminal Loss Relief; Independent Groups carrying on Single Trade; Company Divisions; Operational Management; Description of Trade; Business Cessation; Factory Closures; Global Electronics Business; Schedule 18 p31A Finanace Act 1998; s393A Income & Corporation Taxes Act 1988.
As Tribunal Member
  • Marks & Spencer Plc v. Revenue & Customs Commissioners [2003] STC (SCD) 70; [2009] SFTD 1
    Tax - European Union: Corporation Tax; EC Law; Foreign Subsidiaries; Freedom of Establishment; Group Relief; Liquidation; Losses; Pay and File; Principle of Effectiveness; Self-Assessment; Time Limits; Claims for group relief for losses of foreign subsidiaries; Validity of first and subsequent claims; Application of "No-Possbilities Test"; German Subsidiary; Belgian Subsidiary; Schedule 17a p6 Income & Corporation Taxes Act 1988; Schedule 18 p67 Finance Act 1998; Article 43 Treaty establishing the European Community (Nice version).
  • Resolute management Services Ltd v. Revenue Customs Commissioners; Haderlein v. Revenue Customs Commissioners [2008] STC (SCD) 1202
    Tax - Employment: Double Taxation; Ex Gratia Payments; Income Tax; PAYE; Remuneration; Resignation; Termination of Employment; Resignation of Human Resources Director as business downsized; Payment after Termination of Employment; s63, s401(1) Income Tax (Earnings & Pensions) Act 2003; Articles 14 & 22, USA / UK Double Taxation Convention.
  • Wells & Anr v. Revenue & Customs Commissioners [2008] STC (SCD) 188
    Tax: Deeds of Variation; Disposition of Property; Inheritance Tax; Variation; Wills; Purported Variation of Transfer of Land as if made during Deceased's lifetime; Application of s4, s17(A), s142 and s221 Inheritance Act 1984.
  • Sony Ericsson Mobile Communications AB v. Revenue & Customs Commissioners LTL 22/01/2008 (Unreported elsewhere)
    VAT: Audits; Late Payments; Penalties; Reasonable Excuse; Surcharges; Tax Returns; Unforeseen Tax Audit Demands of other EU Countries; Proportionality of Penalty.
  • Bysermaw Properties Ltd v. revenue & Customs Commissioners [2008] STC (SCD) 322
    Tax - Human Rights: Delay; Margin of Appreciation; Peaceful Enjoyment of Possessions; Penalties; Proportionality; Sub-Contractors' Tax Certificates; Tax Returns; s98a(2)(A) Taxes Management Act 1970; Proportionality of Penalties; Protocol 1 Article 1 European Convention on Human Rights.
  • Whiston Hall Golf Club Ltd v. revenue & Customs Commissioners LTL 26/10/2007 (Unreported elsewhere)
    VAT: Appeals; Assessment; Decisions; Delay; Directions; Grounds for Appeal; Non-Compliance; Striking Out; Separate Appeals against Decision and Assessment; Identical Grounds of Appeal; Validity of Assessment Appeal where Decision Appeal already dismissed; r18(2), r19(3) and r19(3) VAT Tribunals Rules 1986.
  • Cadbury Schweppes Plc & Anr v. revenue & Customs Commssioners [2006] STC (SCD) 35
    Civil Procedure - Tax: Controlled Foreign Companies; Corporation Tax; Directions; Facts; Jurisdiction; References to European Court; Special Commissioners; Written Observations; Jurisdiction to make Directions; Allegations of Fact; Common Ground; r4 Special Commissioners (Jurisdiction and Procedure) Regulations 1994.
  • ATEC Associates Ltd v. Revenue & Customs Commissioners LTL 18/12/2006 (Unreported elsewhere)
    VAT: Appeals; Decisions; Input Tax; Repayments; Striking Out; Application to Strike Out Appeal against purported Decision not to repay; Verification of Claim ongoing; r18(1)(A) VAT Tribunals Rules 1986.
  • Hampstead Holdings Ltd v. Revenue & Customs Commissioners LTL 13/12/2006 (Unrepoted elsewhere)
    VAT - Agency - Planning: Agents; Agreements; Development; Input Tax; Real Property; Existence of Agency Relationship.
  • Quintain Estates Development Plc v. Customs & Excise Commissioners LTL 18/2/2005 (Unreported elsewhere)
    VAT: Delivery; Input Tax; Postal Service; Receipt; Time Limits; Voluntary Disclosure; Validity of Claim for Repayment of Input Tax; Notification of Claim; VAT Returns; VAT Errors; Corrective Returns; Form VAT 652; Receipt of Claim; r29 (1a) VAT Regulations 1995; VAT Act 1994.
  • Demon Internet Ltd v. Young (HMIT) [2005] STC (SCD) 233
    Tax: Deductions; PAYE; Retrospective Legislation; Share Option Schemes; Share Sales; Shares; Employer's Duty to deduct Income Tax; Effect of Legislative Amendments; Gains from Share Options sold prior to 1 August 1998; Income Tax; Pay as You Earn; Retrospectivity; Release of Right to Acquire Shares; PAYE Regulations; s203 Income & Corporation Taxes Act 1988; Income tax (Employments) Regulations 1993; s67 Finance Act 1998; Income & Corporation Taxes Act 1988.
  • Sharifee & Ors v. Wood (HMIT) [2004] STC (SCD) 446
    Tax - Partnerships: Burden of Proof; Income Tax; Partnership Accounts; Partnerships; Profits; Restaurants; Determination of Business Profits.
  • Lordsregal Ltd v. Customs & Excise Commissioners LTL 11/5/2004 (Unrepoted elsewhere)
    VAT - Real Property: Repairs; Improvements; Zero Rating; Listed Buildings; Input Tax; Exempt Supplies; Building Works; Substantial Reconstruction; Characterisation of Supplies; Protected Buildings; Approved Alterations; Restoration; Schedule 8 & 9 VAT Act 1994.
  • M C Bluck v. Salton (HMIT) [2004] STC (SCD) 439; [2004] STC (SCD) 177
    Tax: Income Tax; Share Option Schemes; Assessment; Determination of Amount of Income Tax due; Taxable Income; Enquiries; Closure Notice; Decision in Principle; Revisiting Decision; Procedural Defect.
  • Kerr v. Brown (HMIT); Boyd v. Brown (HMIT) [2003] STC (SCD) 266
    Tax - Employment: Income Tax; Motor Vehicles; Commute; Commuting; Benefits; Hours on duty; Daily Basis; Rest Days; Leave Days; Shifts; Cars; Calculation of Benefits; Private Use; Standing Costs; Income & Corporation Taxes Act 1988.
  • Bacior v. Customs & Excise Commissioners; Martin v. Customs & Excise Commissioners LTL 09/06/2003 (Unreported elsewhere)
    Customs: Excise Duty; Restoration of Goods & Car: Importation of hand rolling tobacco; Attempt to conceal goods; Reasonableness; Stop & Search.
  • West v. Trennery [2001] STC (SCD) 370
    Tax avoidance - settlements
  • Pratt v. Customs & excise Commissioners LTL 12/8/2002 (Unreported elsewhere)
    Customs: Invoices; Taxable Persons; Supplies; Unauthorised Persons; Financial Records; Pay as you Earn; PAYE; Jurisdiction; Reasonable Excuses; Penalties; Mitigation; VAT Act 1994; VAT Tribunal Rules 1986 SI 1986/590.

Appointments

Malcolm was President of the Chartered Institute of Taxation in 1993-94 and in 1996-97 was Chairman of the Law Society's Revenue Law Committee. He has had a long association with the Institute for Fiscal Studies (IFS) in London and also works with the Centre for European Policy Studies (CEPS) in Brussels. He was Chairman of the IFS Executive Committee until 1997 and a member of its Tax Law Review Committee (TLRC) from 1994. He is now an IFS Research Fellow and director of the TLRC's research programme.  He is an editorial member of the IFS' Mirrlees Review on tax systems for the 21st Century.

He has chaired a number of working parties for CEPS looking at the issues of corporate taxation in Europe. He was 1998 Unilever Professor of International Business Law at Leiden University in the Netherlands and continues to teach at the Leiden University International Tax Centre.  He is currently visiting professor of Tax Law at the LSE and Professional Fellow at Queen Mary College, University of London. He is a regular visitor to Australia where he is an adjunct professor at Sydney University and teaches UK international tax at Sydney University Law School.

He has worked as a consultant for the Fiscal Affairs Division of the Organisation for Economic Co-operation and Development (OECD) and was a member of The Permanent Scientific Committee of the International Fiscal Association from 1998 to 2008. 

Malcolm is a Deputy Judge of the Upper Tribunal and a Judge of the First-tier Tribunal.