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Practice Summary

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.  In the 2018 UK Chambers Bar Awards Malcolm won Tax Silk of the Year. 

Recent comments in Chambers & Partners and Legal 500:

A widely respected silk with extensive experience in tax litigation and advisory work. He is frequently involved in a range of international and commercial taxation issues. He acts for both HMRC and the taxpayer. "He is exceptionally good technically, has tremendous experience, is very responsive and displays very impressive knowledge." (Chambers & Partners 2020)

He has an encyclopaedic knowledge of tax law and how it has built up over the past 30 years.’ (Legal 500 2020)

"Fantastic technical ability combined with a practical commercial approach." "His knowledge of the UK tax system is second to none. He is technically brilliant and excellent on his feet in court." (Chambers & Partners 2019)

‘An immensely hardworking genius.’ (Legal 500 2018)

A leading adviser and advocate at the Tax Bar, who boasts extensive experience of handling European and international commercial tax cases. He is in great demand from HMRC. "He has encyclopaedic knowledge and is an outstanding lawyer." (Chambers & Partners 2016)

‘He has the trust of the court thanks to his experience and acumen.’ (Legal 500 2015)

A go-to individual for noteworthy City law firms, who also acts on behalf of the HMRC on some of its most significant cases. His practice covers all aspects of UK and European tax. “He is absolutely excellent. He has got all the skills. He was a solicitor and that means he has an understanding of the documents”. (Chambers & Partners 2015)

‘An impressive and meticulous advocate who has the trust of the court.’ (Legal 500 2014)

He is instructed by many of the leading tax practices in the City, and advises incorporated and unincorporated entities on all aspects of commercial, European and international taxation. “Very strong in property tax. He’s brilliant in that regard.” (Chambers & Partners 2014)

SCOPE OF PRACTICE

Malcolm Gammie is among the leading advocates at the Revenue Bar. He has represented both Her Majesty’s Revenue and Customs and taxpayers is a series of high profile disputes, including most recently for HMRC the Eclipse 35 and Ingenious film scheme litigation. His experience as a solicitor in preparing cases, including handling both documentary and witness evidence, provides him with a unique insight into the conduct of litigation. At Linklaters, he had charge of cases before the Tax Tribunals as well as before both the High Court and the Court of Appeal. As an advocate he has represented taxpayers and the Revenue at all stages of tax appeals including the House of Lords, the Supreme Court and European Court of Justice. He is noted for his painstaking attention to detail on all aspects of the litigation process. He has also assisted in negotiations with the Revenue leading to the satisfactory settlement of disputes.

In addition to his substantial litigation practice Malcolm also 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.

EXAMPLES OF RECENT CASES

  • For the Taxpayer

    • Coal Staff Superannuation Scheme Trustees Ltd v HMRC [2018] UKUT 152 (TCC)
      Whether UK’s stock lending regime was in breach of EU law. Held the regime was in breach.  Successfully reversed decision of the First-tier Tribunal in favour of HMRC.
    • Nicholas Trigg v HMRC [2018] EWCA Civ 17
      Whether bonds issued with a Euro-conversion clause were tax exempt as qualifying corporate bonds.  Held exempt QCBs. Successfully reversed decision of the Upper Tribunal in favour of HMRC.
    • Trustees of the BT Pension Scheme v HMRC [2017] EUECJ C-628/15
      Income tax – whether HMRC bound under EU law to repay tax credit on Foreign Income Dividends to tax exempt trustees.  Court of Appeal ordered HMRC to repay following successful reference to the Court of Justice.  Represented BTPS trustees in CA and at CJEU.
    • Aspect Capital Limited v HMRC [2013] UKUT 
      Corporation tax – employee share scheme; deemed charge on loans to participators; whether company had made a loan or advance or the employees had incurred a debt to the company; effect of contingency as to payment.
    • Garrett Curran v HMRC [2012] 
      Income tax – relief for interest paid; advance payment on discounted basis; whether eligible for relief; whether interest in excess of a reasonable commercial rate; whether relief the sole or main benefit of the transaction.
    • 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. 
  • As Expert

    • Cullen Group Limited v The Commissioner of Inland Revenue (2018)
      New Zealand – application of the general avoidance rule to payments of interest from New Zealand to Cayman entities – relevance of UK remittance basis rules in 2002 (instructed by New Zealand Crown Law on behalf of NZ Inland Revenue Department)
      Commonwealth of Massachusetts v a Taxpayer (2012)
      Massachusetts – construction of English law financing documents for cross-border acquisition of US entity – whether giving rise to debt for State tax purposes (instructed by Caplin & Drysdale for the Massachusetts Department of Revenue)
    • BNZ Investments Limited v. The Commissioner of Inland Revenue (2008); Westpac Banking Corporation v. The Commissioner of Inland Revenue (2009)
      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

    • HMRC v Project Blue Ltd [2018] UKSC 30 
      Whether SDLT avoidance provision (s.75A FA 2003) applied to an arrangement that combined and Islamic financing exemption with sub-sale relief to secure no charge to SDLT. Held s.75A applied to defeat arrangements.  Successfully reversed decision of Court of Appeal in favour of taxpayer.
    • Cyclops Electronics & Anor v HMRC [2018] UKUT 7 (TCC)Whether payments designed to be delivered via a share incentive arrangement were taxable as ordinary earnings. Decision of First-tier Tribunal in favour of HMRC upheld.
    • Administrators of Lehman Brothers International (Europe) v HMRC [2017] EWCA Civ 2124
      Whether interest paid under the Insolvency Regulations was yearly interest and subject to withholding of tax at source. Held that yearly interest and subject to deduction.   Successfully reversed decision of the High Court in favour of the LBIE Administrators. 
    • Ingenious Games LLP & others v HMRC [2014] UKUT 62 (TCC)
      Whether taxpayers obliged to give further disclosure; Successfully reversed decision of First-tier Tribunal refusing further disclosure.
    • Ingenious Games LLP & others v HMRC [2015] UKUT 105 (TCC)
      Appeal regarding on-going conduct of First-tier Tribunal appeal and striking out of elements of HMRC’s evidence paper; First-tier Tribunal decision affirmed but on different grounds.
    • Ingenious Games LLP & others v HMRC [2016] UKFTT 521 (TC); [2017] UKFTT 429 (TC)
      Whether arrangements for investing in films were effective to give rise to substantial losses for investors; whether expenditure on films was capital or income; Decision substantially in favour of HMRC
    • Eclipse 35 LLP v HMRC (up to Supreme Court)
      Whether arrangements for acquiring and promoting film rights amount to a trade; FTT held not trading; upheld in Upper Tribunal and Court of Appeal; Supreme Court refused permission to appeal following full hearing.
    • Shop Direct Group v HMRC [2016] UKSC 7
      Whether repayments of VAT were properly taxed as post-cessation receipts; decision of lower Tribunals and Courts upheld
    • Reed Employment plc & Ors v HMRC [2015] EWCA Civ 805
      Whether arrangements with employees regarding travel expenses gave rise to liabilities under PAYE and NICs.  Decision for HMRC upholding decisions of Upper Tribunal [2014] UKUT 160 (TCC) and First-tier Tribunal [2012] UKFTT 28 (TC)
    • ITV Services v HMRC (Court of Appeal)
    • Explainaway v HMRC (Upper Tribunal)
    • Manthorpe v HMRC (First-tier)
    • DV3 v HMRC (Court of Appeal)
    • Barnes v HMRC (Court of Appeal)
    • First Nationwide v. HMRC [2011] UKUT 174 (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 [2011] UKFTT 81 (TCC)
      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 [2012] S.T.C. 582; 82 T.C. 1
      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 [2010] UKUT 463 (TCC)
      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. 

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 has also worked 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 was director of the TLRC's research programme until 2014. He is now Chairman of the IFS’ Tax Law Review Committee. He was an editorial member of the IFS' Mirrlees Review on tax systems for the 21st Century, “Tax by Design”.

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. 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. He has been a member of the Government’s Tax Professionals’ Forum since 2010. He was awarded the CBE in 2005 in recognition of his work on tax policy.

Malcolm was appointed a deputy Special Commissioner and part-time Chairman of the VAT Tribunals in 2002.  He is now a Deputy Judge of the Upper Tribunal (Tax and Chancery Chamber) and a Judge of the First-tier Tribunal (Tax Chamber).  He is one of the UK’s appointed arbitrators under the EU Arbitration Convention.