Upper Tribunal allows HMRC residence appeal: HMRC v James Glyn

In a judgment handed down on 12 October 2015 the Upper Tribunal (Tax and Chancery Chamber) has upheld HMRC’s appeal against the widely reported decision of the First-tier Tax Tribunal of 8 November 2013 that the taxpayer, Mr James Glyn, was not resident for UK income tax purposes for the 2005/2006 tax year. The decision provides important guidance on the correct approach to determining whether an individual has ceased to be resident in the UK under the common law and what the Tribunal can and cannot take into account in determining that issue.

Background

The appeal concerned the residence status of Mr Glyn in 2005/2006 and in particular whether he had ceased to be resident in the United Kingdom on or before 5 April 2005. The FTT found that he had, allowing his appeal against an assessment to income tax of approximately £5.5 million in the 2005/2006 tax year.

The decision of the Upper Tribunal

The Upper Tribunal allowed HMRC’s appeal. In particular, it held that the FTT had:

i) adopted and applied the “legally irrelevant test” of whether Mr Glyn had a single or dominant settled purpose for his visits to the UK (para 75);

ii) focussed incorrectly on what Mr Glyn might have done during the relevant period rather than what he in fact did (para 80); and had impermissibly focussed on what it considered to be the dominant reason for the retention of his London home, rather than the effect of its retention and continued use on the quality of Mr Glyn’s presence when in the UK (para 82); and

iii) taken into account irrelevant considerations which had led it to impermissibly discount important relevant factors (e.g. family ties and the retention and continued use of the family home) in determining that Mr Glyn had effected a distinct break in the pattern of his life in the UK. Those irrelevant considerations included the FTT’s view that the multiplicity of reasons for return UK visits pointed towards, rather than against, the finding of a distinct break (paras 95 - 96); the fact that Mr Glyn was metering his visits so as not to jeopardise his claim to be non-resident (para 97); speculation as to the steps he might have taken had he been advised differently (para 97); and an impermissible focus and reliance on IR20 as relevant to the determination of whether or not a distinct break had been effected (para 101).

Result

The Upper Tribunal concluded that the multiple errors of law identified meant that the decision of the FTT could not stand. The case was remitted to the FTT for re-hearing by a differently constituted Tribunal.

Akash Nawbatt and Sebastian Purnell represented HMRC.

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Upper Tribunal allows HMRC residence appeal: HMRC v James Glyn

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