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Andrew Macnab

Andrew Macnab

Call: 1986

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Education

MA, LLM (Cantab)

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Introduction

Andrew practises principally in the areas of VAT, duties and indirect taxation, and in related private and public law. He also has wide experience in general civil/ chancery litigation, EU law, competition law, utilities regulation, professional negligence and public law.

He has been Junior Counsel to the Crown (A Panel) since March 2010.

Chambers & Partners and Legal 500 currently rate him as a leading junior in VAT/indirect taxation. During his years in practice, he has also been recommended as a leading junior by Legal 500 in professional negligence and competition law.

  • News
  • VAT, customs and excise duties and indirect taxation

    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.

    Cases

    Recent notable cases include:

    UK Supreme Court

    Court of Appeal

    • The Rank Group Plc v RCC [2020] EWCA Civ 550, Court of Appeal (VAT; correct calculation of s.80 claims)
    • 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)

    Court of Justice of the European Union

    • Fenix International Ltd v RCC, C-695/20 (pending); reference from [2020] UKFTT 499 (TC) (15 December 2020)
    • United Biscuits (Pension Trustees) Ltd v RCC, C-235/19, EU:C:2020:801, [2020] EUECJ C-235/19, [2020] STC 2169, 8 October 2020
    • Compass Contract Services Ltd v RCCC-38/16EU: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)

    High Court

    • 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)

    Upper Tribunal (Tax and Chancery Chamber)

    • Vrgin Media Ltd v RCC [2020] UKUT 100 (TC), Upper Tribunal (VAT; prompt payment discount)
    • 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)

    First Tier Tribunal (Tax Chamber)

    • Fenix International Ltd v RCC [2020] UKFTT 499 (TC) (VAT; challenge to Council Implementing Regulation)
    • Dixons Retail Plc v RCC [2019] UKFTT 714 (TC), First-tier Tribunal (VAT; bespoke retail scheme; time limit for error correction)
    • 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)
  • General civil / commercial litigation

    Andrew is and has been instructed by HMRC in relation to High Court claims for recovery of sums overpaid those claimants to their suppliers, following on from Investment Trust Companies (in liquidation) v RCC.

    Andrew has a strong litigation background. 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.

  • Competition

    Andrew advises private clients in relation to domestic and EC competition law issues, including Chapter I/Article 101 and Chapter II/Article 102, 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.

    Andrew was formerly recommended as a leading junior in EU/Competition Law by Legal 500

  • EU law/ retained EU law

    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).

    Cases

  • Public law

    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.

    Most recently, he has been instructed by the Ministry of Justice in relation to threatened claims for judicial review concerning the Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020. He also represented the Ministry of Justice in Just Digital Marketplace Ltd [2021] EWHC 15 (QB) (08 January 2021), concerning whether enforcement agents could enter into valid Controlled Goods Agreements with judgment debtors remotely, without having entered the debtor’s premises.

  • Utilities regulation

    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.

  • What the directories say

    Tax: Indirect Tax: “His advice is very thorough and structured. In court he’s very good at leading judges through a case.” – Chambers UK, 2021

    Leading junior in Tax: Corporate and VAT: ‘‘Andrew has all the qualities needed from a junior barrister in this area. He is imaginative, looking for solutions from different angles, and finding them. Well respected by both HMRC and taxpayers.’’Legal 500, 2021

    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’.

  • Additional information

    Education: MA, LLM (Cantab)

    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 Negligence Bar Association
  • Publications

    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)

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