Francis Fitzpatrick advises corporates, multi-nationals and individuals on all areas of direct and indirect tax. He advises individuals on domicile and residence issues, trusts, estate planning (especially inheritance and capital gains tax), employment taxes (including employed/self-employed status and NICS) and partnership tax issues (including English law partnerships, LLPs and Scottish partnerships). He has wide experience of commercial and ‘City’ transactions and litigation as well as corporate finance, structured finance, employment remuneration, asset management, trusts, land development, shipping, insurance, energy, intellectual property, cross-border transactions, transfer pricing and damages and restitutionary claims against HMRC. He also has significant expertise in international tax work, including double tax treaties and bi-lateral investment treaties, and of Administrative/Public Law claims against HMRC.
Francis is an experienced advocate appearing before the First-Tier Tribunal, 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 (which led to the repayment of tens of millions of pounds to his clients).
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 (on the LSRA Roll of Practising Barristers)
Areas of practice
He has extensive litigation experience, including cases on: direct tax (income tax, corporation tax); indirect tax (VAT, insurance premium tax, air passenger duty); European law; restitutionary claims for overpaid tax against HMRC; 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:
- personal tax, including: resident and non-resident trusts; domicile; residence;. the non-resident CGT rules (the NRCGT rules); the use of family investment companies; the taxation of land developments and inheritance tax;
- 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;
- environmental taxes, oil and gas taxation and renewable energy;
- shipping and the tonnage tax regime;
- stamp taxes;
- taxation of entertainers and sports performers;
- 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;
- professional negligence, he frequently works with professional negligence lawyers on claims involving tax;
- international tax issues, including: double tax treaties; permanent establishments; bi-lateral investment treaties, free trade agreements and GATT; and cross-border taxation issues.
Francis is a regular contributor to professional journals and has contributed to Equipment Leasing (with Clifford Chance), STEP Administration of Estates and to books on the impact of human rights law on tax.
“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)
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
Freemans v Customs & Excise  STC 960 (before the European Court of Justice on the VAT treatment of mail order traders)
Metallgesellschaft v IRC  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 Associated) v HMRC  AER D 161 (judicial review of environmental taxes)
R (on the application of Federation of Technological Industries and others) v HMRC  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  STC 950 (the VAT treatment of telecommunications services in the airline industry)
Deutsche Morgan Grenfell Group plc v IRC  STC 1 (mistake of law claim for overpaid tax)
Sempra Metals Ltd v HMRC  STC 1599 (compound interest on overpayments of tax)
Europcar UK Ltd v HMRC  STC 2751 (pleading and limitation issues arising from overpaid tax)
BMW AG v HMRC  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  STC (SCD) 397 (first and, to date, only substantive 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  STC 717 (structured finance and the US-UK Double Tax Treaty)
Greenbank Holidays Ltd v HMRC  STC 1582 (tax treatment of goodwill under the intangible assets regime and intellectual property)
Brunel Motor Company Limited v HMRC  STC 1426 (VAT and liquidation)
Viridor Waste Management v Veolia ES Limited Comm Court QBD  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  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  SFTD 410 (on the tax treatment of damages for professional negligence and the loan relationship regime)
Unicorn Tankships (428) Limited v HMRC  UKFTT 0689, 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.