Joshua Carey

Joshua Carey

Year of call: 2015*
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Joshua spent considerable time working for Her Majesty’s Revenue and Customs (“HMRC”) in the VAT Litigation Team. Joshua has gained experience appearing 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 £500 million worth of VAT in litigation on behalf of HMRC. He is also very experienced in matters involving the use of Sch 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. Since coming to the Bar of England and Wales he has become a sought after specialist in direct and indirect tax litigation both for and against the taxpayer. He gives pragmatic advice whilst ensuring that the technical aspects are not overlooked.

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); and
  • 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).

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)

  • 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)

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