Francis Fitzpatrick advises corporates, multi-nationals, HNWIs, HMRC and government departments on all areas of direct and indirect tax. He has wide experience of commercial and ‘City’ transactions and litigation as well as corporate finance, structured finance, private equity, employment remuneration, infrastructure project funding, asset management, trusts, land development, shipping, cryptoassets, insurance, energy and energy infrastructure, intellectual property, cross-border transactions, transfer pricing and damages and restitutionary claims. He also has especial expertise in international tax work, including exchange of information laws, double tax treaties, bi-lateral investment treaties and the implementation of the BEPS project.
Francis is an exceptional advocate appearing both for taxpayers and the government before Tax Tribunals and the appeal Courts.
Francis 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.
Called to the Irish Bar 2018
Areas of practice
He has extensive litigation experience, including cases on: direct tax (income tax, corporation tax); indirect tax (VAT, SDLT, SDRT, IPT, APD); EU law; restitutionary claims for overpaid tax both against the state and between taxpayers; judicial review of HMRC for abuse of power and breach of legitimate expectation; double tax treaties; the loan relationship rules; intangible assets and intellectual property; and transfer pricing.
He advises on all areas of direct/indirect tax and international tax, including:
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- corporate tax, including: the loan relationship rules; the implementation of the BEPS project; treatment of hybrid entities; diverted profits tax; transfer pricing; the profit fragmentation rules; the intangible assets regime and the banking levy;
- international tax issues, including: double tax treaties (in particular the US/UK, Germany/UK and Netherlands/UK DTCs); permanent establishments; bi-lateral investment treaties, free trade agreements and GATT; and cross-border taxation issues;
- environmental taxes, oil and gas taxation and renewable energy;
- shipping and the tonnage tax regime;
- the fiscal and legal analysis of cryptoassets, both cryptocurrency and other assets such as NFTs, in the light of the analysis set out in the UK Jurisdictional Taskforce’s legal statement on ‘cryptoassets and smart contracts’ and recent caselaw
- the Research and Development regime;
- VAT;
- stamp taxes;
- taxation issues for the asset management industry, such as the tax treatment of carry and the disguised investment management fees rules (‘DIMF’ rules) and salaried member rules;
- taxation of entertainers and sports performers;
- professional negligence, he frequently works with professional negligence lawyers on claims involving tax;
- personal tax for HNWIs, including: resident and non-resident trusts; domicile; residence;. the non-resident CGT rules (the NRCGT rules); the taxation of land developments and inheritance tax.
Recent articles
“Tax Aspects of Commercial Trusts”
“The Courts approach to tax avoidance and the decision in UBS v AG”
“The Profit Fragmentation Rules – Keeping it arm’s length” (Tax Adviser March 2019)
“The Disguised Investment Management Fee Rules (the DIMF rules)” of particular relevance for hedge fund and asset managers (Tax Journal May 2019)
“When is a partner an employee – the salaried members rules” (Tax Adviser November 2019)
The Salaried Members Rules AIMA Volume 131
Legal Information
Francis Fitzpatrick KC 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
Freemans v Customs & Excise [2001] STC 960 (before the European Court of Justice on the VAT treatment of mail order traders)
Metallgesellschaft v IRC [2001] Ch 620 (before the European Court of Justice on the compatibility of aspects of UK corporation tax with European law)
R (on the application of British Aggregates Association) v HMRC [2002] AER D 161 (judicial review of environmental taxes)
R (on the application of Federation of Technological Industries and others) v HMRC [2004] STC 1424 (judicial review of VAT anti-avoidance provisions aimed at preventing missing trader inter community VAT fraud)
Society Internationale de Telecommunications Aeronautiques v HMRC [2004] STC 950 (the VAT treatment of telecommunications services in the airline industry)
Deutsche Morgan Grenfell Group plc v IRC [2007] STC 1 (mistake of law claim for overpaid tax)
Sempra Metals Ltd v HMRC [2007] STC 1599 (compound interest on overpayments of tax)
Europcar UK Ltd v HMRC [2009] STC 2751 (pleading and limitation issues arising from overpaid tax)
BMW AG v HMRC [2009] EWCA Civ 77 (judicial review relating to a change of accounting periods for VAT of an associated manufacturer and exporter of vehicles)
DSG Retail Ltd v HMRC [2009] STC (SCD) 397 (first transfer pricing case to go to trial in the UK relating to captive insurance companies and extended warranties, regarded as a landmark case on transfer pricing)
Bayfine UK Products v HMRC [2011] STC 717 (structured finance and the US-UK Double Tax Treaty)
Greenbank Holidays Ltd v HMRC [2011] STC 1582 (tax treatment of goodwill under the intangible assets regime and intellectual property)
Brunel Motor Company Limited v HMRC [2013] STC 1426 (VAT and liquidation)
Viridor Waste Management v Veolia ES Limited Comm Court QBD [2015] 22/05/15 (strike out application arising in a commercial dispute related to input tax)
R(on the application of Veolia ES Landfill Ltd) v HMRC [2016] EWHC 1880 (judicial review claim for breach of legitimate expectation arising from statements made by HMRC)
Amalgamated Metals Corporation PLC v Revenue and Customs Commissioners [2018] SFTD 410 (on the tax treatment of damages for professional negligence and the loan relationship regime)
Unicorn Tankships (428) Limited v HMRC [2019] UKFTT 0689 and[2021] UKUT 0109, in which Francis acted for the successful taxpayer in the first case to reach the FTT concerning the relationship between the tonnage tax rules for shipping and the capital allowances regime, in particular whether a balancing charge arises on a company leaving the tonnage tax regime and on the taxpayer’s successful appeal to the UT
Quinn (London) Limited v HMRC [2021] TC/2020/01846, in which Francis acted for HMRC on the meaning of ‘subsidised expenditure’ in the R&D regime
Muller UK & Ireland Group v HMRC [20230 UKFTT 221 (TC), this important case addresses the taxation of LLPs, and more particularly deals with the interaction of the code governing the taxation of corporate members of LLPs with the intangible assets rules. Francis acted for the taxpayer.’
