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One minute with... Derek Francis

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What’s keeping you busy at work?

It is one of life’s ironies that tax people like me who do trust work have been uncomfortably busy during coronavirus times. There is no doubt that the pandemic has caused people to focus on Benjamin Franklin’s two certainties in life: death and taxes. 

Recent work has included how you vary cy-pres an English will trust settled for charitable purposes and objects exclusively in Scotland, in circumstances in which it is not registered in either jurisdiction, so that it cannot enjoy charitable status for UK tax purposes – or as a Scottish charity. And a possible HR judicial review of UK primary legislation in the context of the Companies Act 2006 bona vacantia regime. I have, on the stocks, what I understand to be the largest judicial variation of a private trust which has been presented to the Scottish court. It simply bristles with interesting issues. Would you believe that in Scots law one relies on English pre-Conveyancing Act 1881 authority for classification and release of powers? It’s time for implementation of the Scottish Law Commission Trust Reform project. 

Has a recent tax case caught your eye? 

Murray Group Holdings/RFC 2012. Lord Drummond Young’s observations on the jurisdiction at Court of Appeal level in tax cases to try issues of English law in the Scots courts (and vice versa) as domestic law must be right, else the tax chamber would have a wider jurisdiction than the upper appellate courts. They show how barristers/advocates and CTAs who practice both English and Scots law can add value. And at a time which has emphasised national boundaries, they are a reminder that tax people are one big UK community – which is refreshingly different from the divisive local politicking of lockdown. 

If you could make one change to tax law or practice, what would it be? 

I think it is a change of practice rather than law that I want. I’m not sure that I would favour reverting in the FTT to the general rule whereby costs follow the event. It’s in the wider interest that as many issues should be tried as possible including those which are novel and inherently hard to call. But the spectacle of HMRC flogging the Ready Mixed Concrete dead horse (or is it a cow?) – mutuality of obligation (‘MoO’) requires only that which is necessary for any old contract – in its largely misconceived IR35 litigation-fest in the FTT where costs are only exceptionally awarded is most unattractive. The stage is being reached at which something needs to be done about it. A few awards of costs would be a good start. 

Looking back on your career to date, what advice would you give to others? 

Start as you mean to go on. A more general background has its uses: tax is always tax on something else, not in the abstract. And we’re privileged to be occasional visitors to innumerable other bits of the law. But if it’s tax you want to do, it’s an occasional visitor you should be from the first. 

And finally, you might not know this about me but…

When I was starting at the Bar, I did all sorts of things. One involved appearing for a haulage company whose operating licence was under threat for various infringements of noise constraints at its operating centre. I was instructed to appear at public enquiry before the traffic commissioner sitting as licensing authority. This is rules-based law, not as different from tax as it might at first blush seem. It was at the time a novel forum for me. And I wondered what one called him. So I asked his clerk. ‘He particularly favours being called Mr Authority, sir’ came the reply. Well, I thought, one addresses a commissioner, as ‘Mr Commissioner’, so why not? I soon found out the answer to my unspoken rhetorical question. ‘May it please you, Mr Authority’ I began – and he gave me a look which left me in no doubt that this was not the first such clerical wind-up he’d experienced. No doubt suitably bigged-up by being so addressed, he went on to be chief justice of Tonga. 
Issue: 1494
Categories: One minute with