Residence

Gaines-Cooper

The recently published decision of the Special Commissioners in Robert Gaines-Cooper v HMRC (SpC 568) has attracted some attention from tax practitioners and their clients. In particular, some commentators have suggested that the decision in Gaines-Cooper means that HMRC has changed the basis on which it calculates the ‘91-day test’. This is incorrect.

The ‘91-day test’ is set out in Chapters 2 & 3 (‘Leaving the UK’ and ‘Coming to the UK – Short term visitors’) of the booklet IR20: Residents and non-residents. This guidance is clear that the ‘91-day test’ applies only to individuals who have either left the UK and live elsewhere or who visit the UK on a regular basis. Where an individual has lived in the UK, the question of whether he has left the UK has to be decided first. Individuals who have left the UK will continue to be regarded as UK-resident if their visits to the UK average 91 days or more a tax year, taken over a maximum of up to 4 tax years. HMRC's normal practice, as set out in booklet IR20, is to disregard days of arrival and departure in calculating days under the ‘91-day test’.

In considering the issues of residence, ordinary residence and domicile in the Gaines-Cooper case, the Commissioners needed to build up a full picture of Mr Gaines-Cooper's life. A very important element of the picture was the pattern of his presence in the UK compared to the pattern of his presence overseas. The Commissioners decided that, in looking at these patterns, it would be misleading to wholly disregard days of arrival and departure. They used Mr Gaines-Cooper's patterns of presence in the UK as part of the evidence of his lifestyle and habits during the years in question. Based on this, and a wide range of other evidence, the Commissioners found that he had been continuously resident in the UK. From HMRC's perspective, therefore, the ‘91-day test’ was not relevant to the Gaines-Cooper case since Mr Gaines-Cooper did not leave the UK.

HMRC can confirm that there has been no change to its practice in relation to residence and the ‘91-day test’. HMRC will continue to:

• follow its published guidance on residence issues, and apply this guidance fairly and consistently;
• reat an individual who has not left the UK as remaining resident here;
• onsider all the relevant evidence, including the pattern of presence in the UK and elsewhere, in deciding whether or not an individual has left the UK;
• apply the ‘91-day test’ (where HMRC is satisfied that an individual has actually left the UK) as outlined in booklet IR20, normally disregarding days of arrival and departure in calculating days under this ‘test’.

The guidance provided by booklet IR20 is general in nature. If, on the facts of the matter, a dispute arises over the application of this general guidance and the parties cannot resolve their dispute by agreement, the Commissioners will determine any appeals. The Commissioners are bound to decide the legal issues by reference to statute and case law principles rather than HMRC guidance. Where a dispute relates to particular facts the Commissioners will consider the evidence and make findings of fact to which they will apply the law.

If you have any comments on these issues, please make these either to:
Steve Symonds
Technical Adviser
CAR Residency
St. John's House
Merton Road
Bootle
Merseyside
L69 9BB

or

Dave Camidge
Technical Adviser
CAR Residency
Fitz Roy House
P.O. Box 46
Castle Meadow Road
Nottingham
NG2 1BD

Issued 4 January 2007.