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Francis Fitzpatrick QC

Francis Fitzpatrick QC

Called 1990 | Silk 2015

Francis is an experienced adviser and advocate, recognised for his exceptional legal skills coupled with real commercial awareness. He is well known for his ability to understand clients' concerns and to find practical solutions. Clients know they are in safe hands with his clear advice and focused advocacy.

He advises corporates, multi-nationals and high net worth individuals on all areas of direct and indirect tax and has particular experience and expertise in corporate finance, structured finance, employment remuneration, land development, shipping, insurance, energy, intellectual property, cross-border transactions and transfer pricing.

He appears regularly in Courts and Tribunals as an advocate for taxpayers and has appeared in the First-Tier Trubunal, the Upper Tier Tribunal, the Commercial Court, the Court of Appeal and the House of Lords (now the Supreme Court) and in the Court of Justice of the European Community. He has extensive experience of litigation concerning claims against the UK government based on breaches of European law and has appeared in seminal cases establishing the liability of Member States to repay taxes levied in breach of European law and to pay compound interest on such repayments. 

He also has an impressive track record in settling seemingly intractable disputes with HMRC without the need for litigation by focused and powerful written submissions made at an early stage in disputes.

Education and academic career

Worcester College, Oxford University (1985-1989): Scholar in law; Law Moderations - Distinction; Finals - First Class Honours; Oxford post-graduate Bachelor in Civil Law degree; BA(Hons), MA and BCL (Oxon).

Tutor in law at Merton College, Oxford (1989-1991).

Inns of Court Scholarship, Inner Temple Duke of Edinburgh Award and Inner Temple Examination Scholarship.

Professional organisations

A member of STEP (Society of Trust and Estate Practitioners) and of the VAT Practitioners' Group.

Publications

Francis is a regular contributor to professional journals and has contributed to Equipment Leasing (with Clifford Chance) and to books on the impact of human rights law on tax.

Particular areas of expertise include:

European law involving repayment claims against the government, where he featured in the ground breaking advanced corporation tax litigation that led to new developments both in tax law and in the common law, see for example Deutsche Morgan Grenfell Group plc v IRC [2007] STC 1 (mistake of law claims for overpaid tax and reliance on the extended limitation period for mistake which led to successful claims for overpaid tax being made back to 1972), Sempra Metals Ltd v HMRC [2007] STC 1559 (compound interest on overpayments of tax going back to 1972); Hoechst UK Limited v IRC [2004] STC 1486 and Europcar UK Ltd v HMRC [2009] STC 2751 (both concerned with pleading and limitation issues arising from claims for mistake of law for overpaid tax). 

Group Litigation Orders, he played a large part in drafting the first tax Group Litigation Order ("GLO") for the ACT Group Litigation and worked on other GLOs including the Stamp Duty and Stamp Duty Reserve Tax GLO (concerning the compatibility with European law of UK rules levying stamp duty and stamp duty reserve tax on the issue and transfer of shares into clearance services)

Judicial review including: the motor industry and VAT BMW AG v HMRC [2009] EWCA Civ 77 (judicial review of HMRC in relation to a change of accounting periods of an associated manufacturer and exporter of vehicles); and judicial reviews of aggregates tax (R (on the application of British Aggregates Association) v C & E [2002] AER (D) 161 (Apr); landfill tax (R (on the application of Veolia Es Landfill Ltd) v HMRC [2014] EWHC 1712, [2015] EWCA Civ 747 and [2016] EWHC 1880); VAT anti-avoidance provisions aimed at MTIC fraud (missing trader inter community fraud) (R (on the application of Federation of Technological Industries and others) v C & E [2004] STC 1424) ; and airport passenger duty

Taxation of employment incentivisation arrangements

Commercial disputes relating to tax

He frequently acts in commercial disputes relating to tax, e.g. Viridor Waste Managment v Veolia ES Limited Commercial Court QBD [2015]  22/05/2015 (a strike out application arising in a commercial dispute relating to landfill tax). Acting for the Claimant where the Particulars of Claim had been served late and the Defendant applied to strike out. The case concerned the application of the Mitchell and Denton principles on relief from sanction. The Court refused the strike out appliation and awarded indemity costs to the Claimant.

Corporation tax and structured financing

Insurance premium tax DSG International Insurance Services Limited v HMRC IPT 0013 (whether an insurance contract was a taxable contract)

Landfill tax, espcially claims arising from the overpayment of landfill tax

Oil and gas taxation

Shipping and the tonnage tax regime, in particular on the relationship between the regime and corporation tax

Telecommmunications Societe Internationale de Telecommunications Aeronautiques v C & E [2004] STC 950 (whether telecommunications services provided to the airline industry were subject to VAT)

Construction industry, both direct and indirect tax issues affecting the industry

Double tax treaties (especially the UK/US double tax treaty), see for example Bayfine UK Products v HMRC [2011] STC 717

Transfer pricing, he was instructed in the first substantive transfer pricing case in the UK – DSG Retail Ltd v HMRC [2009] STC (SCD) 397

The relationship of accountancy principles to tax, see for example Greenbank Holidays Ltd v HMRC [2011] STC 1582 (tax treatment of goodwill under the intangible assets regime)

The tax structuring of complex land developments involving multiple owners including the use of bare trust pooling arrangements, cross-options and conditional contracts and the impact of anti-avoidance provisions applying to "quasi-trading" in land (Chapter 3 Part 13 of the Income Tax Act 2007)

Taxation of entertainers and performers

Trusts and personal tax planning, especially for landed estates, non-domiciliaries, entertainers, artists and musicians. He has particular experience of dealing with high net worth non-domiciled resident remittance based individuals with property and assets in the UK and elsewhere. 

Tax aspects of leasing structures (Francis worked with Clifford Chance on the looseleaf  edition of “Equipment Leasing”)

Professional negligence claims involving tax

VAT - including issues affecting the motor trade, see for example Brunel Motor Company Limited (in administrative receivership) v HMRC [2012] FTC/03 &04/2012 (instructed by Ford Motor Company in relation to the VAT treatment of car dealerships in receivership) and BMW AG v HMRC [2009] EWCA Civ 77 (judicial review of HMRC in relation to a change of accounting periods of an associated manufacturer and exporter of vehicles). He appeared in the European Court of Justice in Freemans v Customs & Excise [2001] STC 960 concerning the VAT treatment of mail order traders.

Tax implications of Britain's exit from the European Union

Brexit raises many complex issues, opportunities and great uncertainty in the fields of both direct and indirect tax. Francis has given lectures and has advised on the likely implications for UK tax.

Recent articles:

"Transfer Pricing and Shareholders - is there a market value rule for equity transactions?"

"Equivalent foreign tax rules" under the new procurement regime" - Tax Journal (12 July 2013) 

Directories:

Chambers and Partners

2016

"Very accessible. A good man with good tactical sense".

2015

"Expertise: "He is technically strong, covers a broad range of work, and always gives practical and well-considered advice".

2014

"Has experience in both direct and indirect taxation on behalf of the taxpayer. He has handled disputes relating to corporation tax, transfer pricing, IP and EU law"

2013

"Francis Fitzpatrick continues to act for the taxpayer in a host of Revenue disputes.  His compelling courtroom presence is noted by sources, who applaud him for the "tough stance" he takes in cases.  "He will not be pushed over by anyone," they say."

2012

"extremely thorough and particularly good with clients"

2011

" .... the highly rated Francis Fitzpatrick, who undertakes complex tax litigation and is seen as an "extremely gifted practitioner". Clients note that "there isn't much difference between him and a silk.""

2010

"exudes star quality - he is calm in all circumstances, he thinks through issues and is a good choice"

2009

"man of the future and a superb team player"

Chambers UK Bar 100 Juniors:

'He has " a high level of commercial awareness" and "an extraordinary ability to listen to points being made in conference. His written opinions are exceptionally clear and as a result of both qualities the advice he gives is clear and reliable."'


Legal Information

Francis Fitzpatrick has professional liability insurance provided by the Bar Mutual Indemnity Fund Limited (of 90 Fenchurch Street, London EC3M 4ST) on a world-wide basis and subject to the terms of cover: see http://www.barmutual.co.uk/.

VAT number: 524 4292 57