Andrew Macnab

Andrew acts in VAT, excise duties, customs duties and other indirect taxation cases in the First-tier Tribunal, Upper Tribunal, High Court, Court of Appeal, Supreme Court and Court of Justice of the European Union. He has acted regularly for the Crown since 1996. In March 2010, Andrew was appointed Junior Counsel to the Crown (A Panel); in 2019 he was reappointed for a further 5 years. He has acted for HMRC in numerous high profile and test cases. Typically, he represents HMRC against a QC instructed by one of the Big 4 accountancy firms, in cases usually raising one or more principles of EU law (both general and VAT-specific). He also advises private clients on VAT and other indirect tax matters, almost all of which are resolved without recourse to the tribunal.

Chambers & Partners and Legal 500 rate him as a leading junior in VAT.

Recent notable cases include:

• Investment Trust Companies (in liquidation) v RCC [2017] UKSC 29, [2018] AC 275, Supreme Court (VAT; restitution; claim for recovery of overcharged VAT by end consumer); also [2015] EWCA Civ 82, [2015] S.T.C. 1280, Court of Appeal; [2013] EWHC 665 (Ch), [2013] STC 1129, High Court (No.2); [2012] EWHC 458 (Ch), [2012] STC 1150, High Court (No.1)
• Littlewoods Ltd v RCC [2017] UKSC 70, [2018] AC 869, Supreme Court (VAT; restitution; whether EU law right to compound interest on overpaid VAT); also [2015] EWCA Civ 515, [2016] Ch 373, Court of Appeal; [2014] EWHC 868 (Ch), [2014] STC 1761, High Court (No.2); [2010] EWHC 2771 (Ch), [2011] STC 171, High Court; [2010] EWHC 1071 (Ch), [2010] STC 2072, High Court (No.1).
• Lloyds Banking Group Plc and others v RCC [2019] EWCA Civ 485, [2019] STC 1134, Court of Appeal (VAT; VAT grouping and recovery of overpaid VAT)
• IFX Investment Co Ltd v RCC [2016] EWCA Civ 436, [2016] 1 WLR 3952, Court of Appeal (VAT; whether “Spot the Ball” a “game of chance”)
• Leeds City Council v RCC [2015] EWCA Civ 1293, [2016] STC 2256, Court of Appeal (VAT; whether time bar on claims for overpaid VAT lawful under EU law)
• Carlsberg UK Ltd v RCC [2012] EWCA Civ 82, [2012] STC 1140, Court of Appeal (Beer duty; calculation of duty)
• Compass Contract Services Ltd v RCC, C-38/16, EU:C:2017:454, [2017] 4 WLR 168, European Court of Justice (VAT; legality of differential limitation periods on “Fleming” claims in section 121 Finance Act 2008)
• United Biscuits (Pension Trustees) Ltd v RCC [2017] EWHC 2895 (Ch), [2018] 4 WLR 18, High Court, Chancery Division (VAT; claim by end consumer against HMRC for VAT allegedly overcharged by supplier)
• Marks and Spencer Plc v RCC [2019] UKUT 182 (TCC), [2019] STC 1450 (Upper Tribunal; VAT; “three items for £10 with free wine” promotion)
• Rank Group Plc v RCC [2019] UKUT 100 (TCC), [2019] STC 1214, Upper Tribunal (VAT; correct calculation of s.80 claims)
• RCC v Tesco Freetime Ltd [2019] UKUT 18 (TCC), [2019] STC 1188, Upper Tribunal (VAT; customer loyalty scheme)
• Marriott Rewards LLC v RCC [2018] UKUT 129 (TCC), [2018] STC 1144, Upper Tribunal (VAT; customer loyalty scheme)
• Taylor Wimpey Plc v RCC (Nos. 1 & 2) [2018] UKUT 55 (TCC), [2018] STC 689; [2017] UKUT 34 (TCC), [2017] STC 639, Upper Tribunal (VAT; EU law legality of input tax block)
• Photron Europe Ltd v RCC [2012] UKUT 275 (TCC), [2012] STC 2475, Upper Tribunal (Customs duties; tariff classification of high speed cameras)
• Virgin Media Ltd v RCC [2018] UKFTT 556 (TC), First-tier Tribunal (VAT; prompt payment discount)
• ASOS Plc v RCC [2018] UKFTT 353 (TC), First-tier Tribunal (VAT; VAT treatment of delivery charges where goods returned)
• Thathiah v RCC [2017] UKFTT 601 (TC), First-tier Tribunal (Taxes management; duties of Senior Accounting Officer, Schedule 46 FA 2009)
• BAT Industries Plc v RCC [2017] UKFTT 558 (TC), First-tier Tribunal (Corporation Tax; compatibility with EU and ECHR law of tax on “restitution interest” in Part 8C of the Corporation Tax Act 2010
• Molson Coors Brewing Co (UK) Ltd v RCC [2017] UKFTT 342 (TC), [2018] SFTD 1, First-tier Tribunal (Excise duty; constructive removal of beer)
• Staniszewski v RCC [2016] UKFTT 128 (TC), First-tier Tribunal (Excise duty; forfeiture; EU and ECHR proportionality)
• Wellcome Trust Ltd v RCC [2016] UKFTT 56 (TC), [2016] SFTD 783, First-tier Tribunal (VAT; deductibility of input tax; Lennartz mechanism; non-business “business” activity)
• Northern Lincolnshire and Goole Hospitals NHS Foundation Trust v RCC [2015] UKFTT 103 (TC), First-tier Tribunal (VAT; putative assignment of s.80 claims by health authority to NHS Trust)
• PricewaterhouseCoopers LLP v RCC [2015] UKFTT 7 (TC), First-tier Tribunal (VAT; deductibility of VAT on business entertainment)

Andrew is currently instructed by HMRC in relation to numerous High Court claims brought by end consumers against HMRC for recovery of sums overpaid by those customers to their suppliers. The most significant active case is United Biscuits (Pension Trustees) Ltd v RCC [2017] EWHC 2895 (Ch), [2018] 4 WLR 18, in which the Court of Appeal has referred a question to the Court of Justice (Case C-235/19).

Andrew has a strong litigation background. Between 1990 and 2004, he acted regularly for solicitors accused of professional negligence, receiving instructions from the Solicitors Indemnity Fund via its panel solicitors in more than 250 matters. He was listed in the Legal 500 as a leading professional negligence junior.

He has acted in numerous commercial disputes, none of which is reported, including:

• A dispute between a UK company and a German competitor over alleged breaches of German unfair competition law and the German Civil Code, arising from alleged conspiracy to poach staff and customers)
• a dispute between former business collaborators over rights to business opportunities, company property, internet domain names, etc. in the context of forestry investment products and tropical hardwood plantations;
• a dispute over ownership of London Welsh Rugby Club and the circumstances in which the defendant acquired it;
• a dispute over the adequacy of cathodic protection on an oil pipeline;
• various contractual disputes between government departments and suppliers.

He acted on a regular basis for the (now dissolved) Residuary Milk Marketing Board in arbitrations and litigation against whole milk and low fat milk producers. Claims involved elements of EC law (in both commercial law and public law contexts), domestic contract law, competition law and statutory interpretation.

Andrew advises private clients in relation to domestic and EC competition law issues, including Chapter I/Article 81 and Chapter II/Article 82, leniency applications, cartel investigations, telecommunications, mergers and State aid.

He acted for the Consumers’ Association in Burgess v Office of Fair Trading [2005] CAT 25, the first case in which the Consumers’ Association intervened in an appeal to the Competition Appeal Tribunal and for the claimant in Network Multimedia Television Ltd v Jobserve Ltd, the first case in which a UK court granted an interim injunction to restrain a contravention of the Chapter II prohibition under the Competition Act 1998.

Most, if not all, of Andrew’s practice involves EU law issues, in one form or another. Andrew has also appeared in a number of cases raising “pure” or specialist issues of EU law, the most exotic being Conex Bänninger v European Commission [2010] EWHC 1978 (Ch), [2011] EuLR. 100 (concerning whether a claimant was entitled to declarations from the High Court against the European Commission that the claimant could be under no liability under the doctrine of economic continuity for a predecessor’s infringement of Article 101 TFEU).

Andrew has acted for the Commissioners of Revenue and Customs in relation to a number of (proposed and actual) claims for judicial review brought by taxpayers.

Between 2005 and 2007, Andrew working closely with OFWAT and DEFRA in relation to the implementation of the Water Supply Licensing (WSL) regime introduced by the Water Act 2003. He has subsequently advised in relation to water regulation, including issues of competition law and compliance with licence conditions and service standards.

Tax: Indirect Tax: “Very thorough and structured in his approach, he’s very good at leading judges through their decision-making processes.””He is very approachable and clear in his advice.” – Chambers UK, 2020

Leading junior in Tax: Corporate and VAT: ‘‘Always efficient and approachable.’’ – Legal 500, 2020

Tax: Indirect Tax: “Very approachable and client-focused.” – Chambers UK, 2019

Leading junior in Tax: Corporate and VAT: ‘‘He specialises in VAT, duties and indirect taxation.’’ – Legal 500, 2018

Tax: Indirect Tax: “He is great. A proper fighter.” – Chambers UK, 2018

Leading junior in Tax: Corporate and VAT: ‘‘A great choice for complex VAT cases.’’ – Legal 500, 2017

Tax: Indirect Tax: “He’s a great paper advocate and has a very nice writing style.” – Chambers UK, 2017

Leading junior in Tax: VAT: “Technically strong and very approachable.” – Legal 500, 2016

Tax: Indirect Tax: “A consummate practitioner with great in-depth knowledge.” – Chambers UK, 2016

“Clear, precise, effective and pragmatic.” Leading Junior in Tax VAT Law. Legal 500, 2015

Tax: Indirect Tax: “He is very experienced at working with government.” – Chambers UK, 2015

‘One of the best senior juniors for indirect tax litigation, a technically rigorous advocate.’ Andrew Macnab is listed as a leading Junior in Tax: Corporate and VAT Law. Legal 500, 2014

‘Recognised for his expertise in EU law.’ Andrew Macnab is listed as a leading Junior in EU and Competition Law. Legal 500, 2014

Under Tax: Indirect Tax: Focuses on VAT, excise and customs duties as well as other indirect taxes. “Offers clear and concise commercial advice.”Chambers UK, 2014

Andrew Macnab is listed as a leading Junior in EU and Competition Law. Legal 500, 2013

Andrew Macnab is listed as a leading Junior in Tax: Corporate and VAT Law. Legal 500, 2013

Andrew Macnab is a recommended leading junior in EU and Competition Law. Legal 500, 2012

Andrew Macnab is a recommended leading junior in Tax: Corporate and VAT Law. Legal 500, 2012

Tax: Corporate & VAT recommends Andrew Macnab as a leading junior. Legal 500, 2011

Under EU and competition the Legal 500, 2010 states that Andrew Macnab is ‘excellent, very commercial and straight to the point’.

Bellamy & Child: Materials on European Community Law of Competition, Oxford University Press (2008 to 2014)

Introduction to EU Competition Law (ed. Willis), Informa, 2005 (chapter on private enforcement of competition law claims)

EU Competition Law self-study series, Informa, 2005, 2006 (enforcement of competition law claims)

Lloyd’s Law Reports: Professional Negligence, 1999 to 2003 (contributing editor)

Qualifications

• Downing College, Cambridge (1981 – 1985)
• BA (law) (1984) MA (1988)
• LLM (international law) (1985)
• Scholar of Downing College
• Arnold McNair Scholar in International Law (University of Cambridge), (1984)
• Whewell Scholar in International Law (University of Cambridge), (1985)
• Clive Parry Prize for International Law (University of Cambridge), (1985)

Professional Memberships

• VAT Practitioner’s Group (London Chapter)
• Revenue Bar Association
• Competition Law Association
• Bar European Group
• Chancery Bar Association
• COMBAR
• Professional Bar Association