Joshua Carey

Year of Call: 2015

Joshua Carey

Year of Call: 2015

Joshua Carey

Year of Call: 2015

Joshua Carey

Joshua Carey

Year of Call: 2015

Joshua has a significant practice, predominantly in the areas of Tax, Public and Administrative Law (including Judicial Review), Commercial Litigation, Civil and Criminal Fraud and Business Crime. His wide range of clients include large multi-nationals, and central and local government.

Before joining the Bar, Joshua was a solicitor advocate in a “Big Six” Australian law firm specialising particularly in the areas of Judicial Review, Commercial Litigation, Constitutional Law and Freedom of Information Litigation. After relocating to London, he became the Lead Solicitor for the Missing Trader-Intra Community (MTIC) Litigation team for HMRC in London.

He is a member of the Attorney General’s C Panel of counsel, and has experience of drafting policy guidance for government departments for implementation and use by departmental officers as well as of statutory interpretation and construction of financial legislative instruments.

He is called to the Bar of Queensland, Australia.

  • Tax

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    Joshua is a specialist in direct and indirect tax litigation both for HMRC and the taxpayer. He gives pragmatic advice and is highly regarded for his advocacy skills.

    Prior to private practice at the Bar, Joshua was a member of the HMRC VAT Litigation Team. He has appeared in the First-tier Tribunal (Tax Chamber) on a variety of issues and was the lead lawyer for HMRC in London in respect of a significant number of Missing Trader Intra-Community Tax (MTIC) cases. Cumulatively, Joshua has defended in excess of £650 million worth of VAT in litigation on behalf of HMRC. He is also very experienced in matters involving the use of Schedule 36 Finance Act 2008 powers by Revenue and Customs officers as well as issues involving HMRC’s use of Schedule 24 Finance Act 2007 penalties, Schedule 55 Finance Act 2009 and s63 Value Added Tax Act 1994 misdeclaration penalties.

    Some example of the types of work that he has been instructed in include:

    • AWRS and WOWGR refusal decisions
    • Excise assessments and penalties
    • VAT registration appeals
    • VAT assessments and associated penalties
    • Self-assessment penalties
    • Top slicing relief
    • Avoidance litigation (including DOTAS, s74A – D Income Tax Act 2007 and Ramsay abuse)
    • Damages litigation in the High Court arising out of alleged Revenue officer’s negligent performance of their duties

    He is a leading barrister in respect of tax penalties having been instructed in the three key authorities relating to the test to be applied, the impact of proportionality on penalties, and what might amount to “special circumstances”. More recently Joshua has been instructed in direct tax cases arising out of damages settlements and the tax treatment of such sums of money (i.e. are they emoluments for tax purposes).

  • Off-payroll working (IR35)

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    Joshua accepts instructions in IR35 matters for both HMRC and the taxpayer.

    His most recent matter relates to the tax treatment of the earnings of a sports broadcaster and their production company.

  • Commercial Litigation

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    Joshua has extensive experience in Commercial Litigation, predominantly during his practice as a solicitor in Australia.

    Amongst his notable instructions are an international joint venture dispute for one of the leading mining companies in the world and a $8m AUD (£4.6m) breach of contract case where the allegation was, amongst other things, that there were breaches of an implied term of the contract and whether the damages that were claimed were too remote.

  • Business Crime

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    Joshua’s white collar criminal practice encompasses financial crime, criminal tax, and proceeds of crime matters (including account freezing orders and cash forfeiture orders).

    He has been separately instructed to defend alleged frauds on both the Ministry of Defence and the Home Office where there were millions of pounds said to have been defrauded.

    He has recently accepted instructions in a money laundering matter where the Defendant was accused of converting criminal property.

    He brings experience as an accomplished tax practitioner to the criminal sphere to aid his clients. He is often called on to deploy his tax experience to counter allegations made by the Crown that someone has evaded VAT or somehow cheated the revenue. As part of his robust defence of his clients in tax cases he has been able to raise arguments about the manner in which VAT assessments have been made, both in terms of time limits within which they ought to have been made and the value of the assessments.

  • Notable cases

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    Court of Appeal

    • The Commissioners for HM Revenue and Customs -v- Ian Charles t/a Boston Computer Group Europe [2019] EWCA Civ 2176 (Lewison LJ, Newey and Asplin LJJ) The Revenue successfully appealed against a refusal to strike out a Claim in the Queen’s Bench Division where it was originally held by a High Court Judge that a narrow duty of care may exist on the Revenue to verify the factual accuracy of both its own evidence and its opponents evidence because a taxpayer was exercising a statutory right of appeal. The Court of Appeal unanimously allowed the Appeal and opined that there was clearly no such duty of care that could arise in adversarial litigation between parties, even where one of the parties was a statutory authority.

    High Court (Reported decisions)

    • R (On the Application of Thames Wines Limited) -v- HM Revenue and Customs [2017] EWHC 452 (Admin) which was a case about whether HMRC could deregister a taxable person in the absence of domestic authority.

    Upper Tribunal (Tax and Chancery Chamber)

    • Nicholas and Charlotte Sandham t/a/ Premier Metals Leeds [2020] UKUT 193 (TCC) (Miles J and UTJ Richards) The Appellants claimed that the Kittel principle did not apply to a partnership where a dishonest agent was carrying out the transactions. It was suggested that because a partnership is comprised of natural persons, if they did not know or have the means of knowing of knowing then dishonest knowledge of an agent could not be attributed to them. The Upper Tribunal rejected this on the basis that the ordinarily principles of agency applied so as to make a principal liable.
    • HM Revenue and Customs v. Nigel Rogers and Craig Shaw [2019] UKUT 0406 (TC) a successful appeal by HMRC against an FTT decision on the papers in relation to late filing penalties. HMRC appealed on four grounds. Whether the FTT had jurisdiction to consider whether a valid Notice to File pursuant to s8 Taxes Management Act 1970 had been issued to them for the purposes of a Schedule 55 Penalty; whether the FTT wrongly applied a literal interpretation of s8 of the TMA by concluding that it required an officer to be identified when a s8 Notice to File was issued; whether the FTT was wrong to conclude that s8(1) of the TMA required a s8 Notice to File to be issued by a “flesh and blood” officer rather than a computer, and whether the FTT had denied the Revenue procedural fairness in arriving at its decision. Joshua was led by Aparna Nathan QC.
    • Wiesenfeld and Anor -v- The Commissioners for HM Revenue and Customs [2019] UKUT 301 (TCC) (UTJ Richards and UTJ Greenbank) The Appellants appealed against the decision to refuse to permit evidence to be adduced by and through their representative in a Polish Loss Relief appeal in the Tribunal. The FTT refused to permit the representative to say what he had heard as this was not contained within the witness evidence, and in any event was said to be hearsay. Joshua’s advocacy was praised by the Upper Tribunal as both being “fair” and “valiant”. The Upper Tribunal determined that the FTT had been wrong to exclude the evidence on the basis that it was hearsay but that this did not make any difference to the overall outcome of the Appeal which turned on whether the careless penalty that had been imposed (the Appellants wrongly having claimed loss relief) was proper. The Upper Tribunal said that it was and the Appeals were dismissed.
    • Elbrook Cash and Carry Limited -v- The Commissioners for HM Revenue and Customs [2019] UKUT 201 (TCC) (Zacaroli J and UTJ Scott) This case considered whether witness statements needed to have opinion redacted from them or whether the Tribunal had power to consider opinion evidence and simply give what weight it wished to that evidence. It also revised the so-called Fairford direction so as to permit cross-examination where there was no positive case advanced, but a challenge to the evidence was sought to be made by an Appellant. This represents an amendment to the guidance originally provided in Fairford but the Upper Tribunal refused to go so far as to say the Fairford direction was wrong in principle. Joshua was led by Howard Watkinson.
    • Barry Edwards -v- The Commissioners for HM Revenue and Customs [2019] UKUT 131 (TCC) (Nugee J and UTJ Herrington) This case examined whether the Schedule 55 Penalty regime was proportionate and the fact that even if no tax was due, this did not amount to a “special circumstance” for the purposes of reducing a tax penalty to nil.
    • Christine Perrin -v- The Commissioners for HM Revenue and Customs [2018] UKUT 0128 (TCC) (UTJ Herrington and UTJ Poole) This case marks the first opportunity the Upper Tribunal has had to consider the test for “reasonable excuse”. It is the now the leading authority applied by the First-tier Tribunal when considering whether what the taxpayer did was objectively reasonable when compared against what a reasonable taxpayer would have done.
    • Timothy Raggatt QC -v- The Commissioners for HM Revenue and Customs [2018] UKUT 412 (TCC) (UTJ Herrington and UTJ Greenbank) This case dealt with the application, and confirmation, of the principles relating to “reasonable excuse” espoused in Perrin -v- HMRC. It confirmed that for an appeal against a penalty decision of the FTT, the test was one of perversity.

    First-tier Tribunal (Tax Chamber)