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Derek Francis

Derek Francis has a practice specialising in high-end trust, executry, breach of fiduciary duty and tax. Much of his tax practice is trust and executry related. It has always extended beyond that context and he has advised and appeared in a range of tax matters, particularly in indirect tax cases. He is regularly instructed to draft and revise trust documentation for IHT planning purposes, including precedent styles for leading firms in that field. He is a member of the Editorial Board of Foster's Inheritance Tax. He is a Fellow of the Chartered Institute of Taxation ("CIOT"). He chairs the Edinburgh Tax Network, a cross-disciplinary CIOT, ICAS, ICAEW, STEP and TrustBar sponsored CPD talk organiser for the tax profession.

 

 

Derek's tax cases include appearing for HMRC in Butlers Ship Stores Ltd v HMRC [2012] UKFTT 371 (TC), a ground-breaking case on the application of EU principles of proportionality and legal certainty deriving from VAT cases in an Excise as compared to VAT context. Taxpayer's counsel were Julian Ghosh QC and Philip Simpson, Advocate, CTA, of Terra Firma Chambers. He also appeared in Highland Council v Revenue & Customs Commissioners before the Value Added Tax & Duties Tribunal. Derek was for two years a part-time tutor in Taxation in the University of Edinburgh. Trust and executry cases include Turner v Turner [2012] CSOH 41; 2012 S.L.T. 877; 2012 S.C.L.R. 329 - the leading Scots case on ademption of a special legacy by a continuing attorney's sale of the specially legated thing after the principal's incapacity.

 

 

He has drafted and moved numerous public and several private trust variations and acted/advised alone or led in many others. Recent examples include Allan Glen's School Club Trusts 2012, which involved hiving off from a public trust with otherwise charitable purposes - and a massive potential CGT liability on assets - a private (member's club) element which prevented the trusts from being exclusively charitable for tax purposes. He has acted in a wide spectrum of trust/fiduciary litigation; petitions for removal/appointment of trustees, accountings, and petitions for directions. He has acted in professional negligence cases - particularly of the disappointed beneficiary sort.

 

 

He has advised and appeared in company matters arising out of unfairly prejudicial conduct, including Jesner v Jarrad Properties Ltd 1993 SC 34, just and equitable (and other) winding-up, wrongful trading and misfeasance applications and in several pensions matters, including litigation relating to surpluses, equalisation and mis-exercise of fiduciary powers.

 

 

He is past Chairman of the Faculty of Advocates Trusts Fiduciaries and Executries Bar Group ("TrustBar") 2006 - 2012. He is a Scottish committee member of the Society of Trust and Estate Practitioners ("STEP"). He was Convenor of the Bar's and chairman of STEP's committee on the Scottish Law Commission ("SLC") DP 142 (Accumulation etc of Private Trusts) and convenor of the Bar's committee on Public & Charitable Trusts 2012. He is a member of SLC trust consultative group and has served as a member of numerous other technical committees.

 

 

His personal interests and hobbies include French literature, cycling and hill walking. He speaks good French and bad Italian.

 

 

Derek has been an occasional lecturer on judicial review and remedies for Law Society CPD courses.

 

 

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