HISTORY
nigel gibbon & co was founded by Nigel Gibbon on 1st February 1999 and has been helping clients in difficulties with what was, at the time, HMC&E and is now HMRC ever since. Prior to that Nigel qualified as a solicitor in 1984 and spent 3 years defending thieves, murderers and rapists before joining the Solicitor's Office of HMC&E in London, conducting VAT appeals for HMC&E from 1988 onwards. In 1990 he set up the VAT and Duties appeals division in HMC&E's new Manchester Solicitor's Office, which he ran until 1996 when he joined a national top-10 law firm as head of indirect tax. But the work was unsatisfyingly transactional rather than dispute based and the lure of the cut and thrust of indirect tax litigation proved too much. So, in 1999, nigel gibbon & co was born and the firm continues to flourish 27 years later.
SERVICES
nigel gibbon & co offers a unique service in a niche area of the law. We specialise in the representation of businesses in disputes with HMRC both in the statutory review process within HMRC and in appeals to the Tax Chamber of the independent First-tier Tribunal - which we just call “the Tax Tribunal”.
We concentrate on giving advice and assistance to VAT or Customs/Excise consultants, accountants, solicitors and other fellow professionals whose clients are in dispute with HMRC in relation to VAT or Customs/Excise issues but we occasionally accept instructions direct from businesses.
We provide a level of service tailored to the individual case. This might mean, at one end of the scale, providing advocacy services for a specific Appeal hearing, leaving our partner practitioner to “run” the case generally. At the other end of the scale, we might be asked to take over a case lock, stock and barrel – including all contact with the client.
Most decisions of HM Revenue & Customs concerning VAT, Customs Duty or Excise Duties can be appealed initially by way of a departmental statutory review and thereafter to the Tax Tribunal; for instance :
- assessments for under-declared VAT;
- claims for repayments of overpaid VAT;
- the VAT liability of supplies (ie. standard rated, zero rated or exempt);
- penalties for inaccuracies in VAT returns or for late returns;
- the Tour Operators' Margin Scheme (see later);
- tariff classification of imported products;
- import valuation;
- customs duty reliefs and preferences;
- liability to excise duties (eg. tobacco duty or duty on alcohol).
Such appeals are becoming more and more common as HMRC tries to maximise indirect tax revenues in these challenging economic times.
The statutory review process is not mandatory but can sometimes produce results without the time and expense of an appeal to the Tax Tribunal.
Often, however, it becomes necessary to appeal to the Tribunal and, although VAT was heralded as a “simple tax” when it was introduced, and even though the Tribunal appeals system was originally supposed to be informal and user friendly, the truth today is very different.
VAT is anything but “simple”; Customs Duty can be a minefield; and appeals to the Tax Tribunal are regulated by The Tribunal Procedure (First-tier Tribunal) (Tax Chamber Rules) which is Statutory Instrument 273/2009. The Rules run to 42 regulations which go from determining whether an appeal can be entertained by the Tribunal; to the situations in which an appeal may be heard in the absence of a party; to the role of the Upper Tribunal in complex cases and in further appeals. Simple they are not!
We are specialists in the Tax Tribunal appeals procedure and our primary aim is to assist fellow practitioners to offer a first class and cost efficient appeals service to their clients.
We also represent clients in appeals from the Tax Tribunal to the Upper Tribunal and assist clients in further appeals to the Court of Appeal or to the Supreme Court and, prior to Brexit, several clients of ours were involved in references to the European Court of Justice.
Although we specialise in taking cases to appeal at the Tax Tribunal, we also subscribe to the first rule of litigation – that it is better to settle a case, if at all possible, than to risk the uncertainties inherent in all litigation. An appeal to the Tax Tribunal should always be viewed as a last resort and no opportunity should be lost to engage HMRC in discussions with a view to reaching an agreed settlement (mindful of the maxim that a "good" settlement is one with which either party is entirely happy!).
It is vital, however, that early advice should be sought before engaging HMRC in negotiations because saying or doing the wrong thing at the wrong time might well prejudice the possibility of a successful settlement and might also adversely affect the final outcome of any appeal to the Tax Tribunal.
THE TOUR OPERATORS' MARGIN SCHEME
We are one of the few independent tax consultancies offering specialist advice on the "TOMS". From our inception in 1999 we advised Airtours (later MyTravel) until it was bought by Thomas Cook in 2007. In particular Nigel Gibbon represented MyTravel (with counsel) at the European Court of Justice in November 2004 in its dispute with HM Customs & Excise (as was) concerning the correct method of calculating its in-house supplies within the TOMS, relating to flights provided by its own airline.
Over the years, Nigel has dealt with many TOMS cases, both while still with HMC&E and after moving to the private sector, including Aspro Travel, Simply Travel and Welsh's Coaches - to name but three among many.
We have also partnered with the country's leading TOMS consultant, Martin Pooley, on numerous occasions over those years when he required specialist litigation advice and representation (as well as TOMS expertise) on behalf of his clients.
EXPORT CONTROLS
Export licences are required for the export from the UK of certain goods. These are usually products which are intended for military purposes or which could be used for such purposes (dual-use products) but could be any goods intended for a country subject to sanctions. Dual-use goods include much computer equipment because encryption is often viewed as being capable of military use.
Failure to obtain an appropriate export licence from the UK's Export Control Organisation (part of the Department for International Trade) is a criminal offence.
We do not advise on the requirement to obtain export licenses for specific goods but we have drafted several reports to the ECO disclosing unintended breaches of the controls with a view to avoiding criminal charges. We have done so in conjunction with Alex McLoughlin of TARA (Trade and Regulatory Advisors) who is a recognised expert in UK and US export controls. His website is at: www.customsadvisor.co.uk.