“28A Completion of enquiry into personal or trustee return or NRCGT return (1) This section applies in relation to an enquiry under section 9A(1) or 12ZM of this Act. (1A) Any matter to which the enquiry relates is completed when an officer of Revenue and Customs informs the taxpayer by notice (a 'partial closure notice') that the officer has completed his enquiries into that matter. (1B) The enquiry is completed when an officer of Revenue and Customs informs the taxpayer by notice (a 'final closure notice') – (a) in a case where no partial closure notice has been given, that the officer has completed his enquiries, or (b) in a case where one or more partial closure notices have been given, that the officer has completed his remaining enquiries. (2) A partial or final closure notice must state the officer's conclusions and – (a) state that in the officer's opinion no amendment of the return is required, or (b) make the amendments of the return required to give effect to his conclusions. (3) A partial or final closure notice takes effect when it is issued. (4) The taxpayer may apply to the tribunal for a direction requiring an officer of the Board to issue a partial or final closure notice within a specified period. (5) Any such application is to be subject to the relevant provisions of Part 5 of this Act (see, in particular, section 48(2)(b)). (6) The tribunal shall give the direction applied for unless satisfied that there are reasonable grounds for not issuing the partial or final closure notice within a specified period. (7) In this section 'the taxpayer' means the person to whom notice of enquiry was given. (8) In the Taxes Acts, references to a closure notice under this section are to a partial or final closure notice under this section.”
“(1) An officer of Revenue and Customs may by notice in writing require a person (“the taxpayer”)— (a) to provide information, or (b) to produce a document, if the information or document is reasonably required by the officer for the purpose of checking the taxpayer's tax position.”
“Condition B is that an officer of Revenue and Customs has reason to suspect that— (a) an amount that ought to have been assessed to relevant tax for the chargeable period may not have been assessed, (b) an assessment to relevant tax for the chargeable period may be or have become insufficient, or (c) relief from relevant tax given for the chargeable period may be or have become excessive.”
“ The Tribunal has expressed the view …in relation to the closure application, that the Tribunal will not determine [the Appellant’s] domicile when determining whether or not to order closure, but will only do so on appeal against a closure notice (assuming that a closure notice is issued on the basis that [the Appellant] was domiciled in the UK). The matter has been referred to Judge Mosedale. The Judge understands each parties’ [sic] competing views. Her concern is that it is not entirely clear whether the [First-tier Tribunal] would have jurisdiction to determine [the Appellant’s] domicile in either or both an application for closure or an appeal against an information notice seeking information on the taxpayer’s worldwide income. She is not aware of the point having been considered before and considers it possible that the [First-tier Tribunal] need to do no more in such a hearing than decide whether it was reasonably arguable that the taxpayer was domiciled in the UK. At the same time, she can understand that a person may not want to provide information on his worldwide income to HMRC if it is irrelevant to his UK tax liability .”
“ If the application is maintained for a final closure notice, however, it seems imperative that before the hearing of the application, a decision is made as to whether or not the hearing can and will finally determine [the Appellant’s] domicile, as that will affect each parties’ [sic] approach to the necessary evidence to be produced at the hearing, not to mention the length of the hearing”
“ The [Appellant] maintains its case that the [First-tier Tribunal] has jurisdiction to determine the question of domicile as a preliminary issue in either or both the closure notice application or appeal against the information notice. [The Respondents] do not appear to specifically comment on this although the implications of [the Respondents’] letter may be that [the Respondents] consider evidence of [the Appellant’s] worldwide income may itself be evidence in relation to domicile (although this is not made entirely clear by [the Respondents]). The Judge remains concerned that the question of [the Appellant’s] domicile is not a question that would have to be answered by the [First-tier Tribunal] before determining the closure notice application or the appeal against the [IN]. And if it is not a question that must necessarily be determined in those hearings, then the grounds on which to hold a preliminary issue cannot be met. While it could be said that details of [the Appellant’s] world wide [sic] income would not be reasonably required if he was not UK domiciled, it may well be said that they are reasonably required in circumstances where it is uncertain whether or not he is UK domiciled. Similarly, while it could be said [the Respondents] may already be in a position to close the enquiry if they knew [the Appellant] did not have a UK domicile, it may be said that [the Respondents] can satisfy the [First-tier Tribunal] that the Tribunal [by which I believe the First-tier Tribunal to have meant “the enquiry”] should not be closed while the question of domicile remains uncertain. In other words, the Judge’s preliminary view is that the [First-tier Tribunal] could reach a conclusion in both proceedings without determining domicile and therefore the matter of domicile cannot be a preliminary issue .”
“[The Respondents’] position in relation to domicile as a preliminary issue is one of agreement with the Judge’s view expressed in the [First-tier Tribunal’s] letter of1 April 2019 ; that domicile does not need to be determined in order to resolve the substantive matters of the application for a closure notice and appeal against [an] [IN], and therefore the question of domicile cannot be a preliminary issue ”; (7) on11 April 2019 , M&H wrote to the First-tier Tribunal in response to the Respondents’ letter of10 April 2019 . In its letter, M&H said that the Respondents’ grounds for refusing to agree to a joint referral under Section 28ZA of the TMA were inconsistent with the Respondents’ stated objectives, that it felt obliged to accept that that was the end of the matter so far as concerned a referral under that provision but that it reserved its right to make a costs application in due course. M&H then went on to address the matter of the hearing and, having noted that the hearing was set down for two days, it said: “ To avoid the risk of further delays, we consider that any such hearing should be able to hear all arguments (covering both the [First-tier Tribunal’s] jurisdiction on such appeals/applications as well as the factual disputes) rather than have the former dealt with at any preliminary hearing .”
“24. The case of Vodafone 2 concerned the compatibility of the United Kingdom's rules on controlled foreign companies (CFCs) with European law. The Inland Revenue had opened an enquiry into the company's corporation tax return on the grounds that a Luxembourg company was a CFC of Vodafone and the profits of the Luxembourg company should have been apportioned to it. Vodafone resisted the provision of information to the Inland Revenue unless formally requested to do so. The compatibility of the United Kindgom's [sic] CFC provisions had already been referred to the European Court in another case (Cadbury Schweppes) and the company's view was that the CFC provisions were unenforceable. 25. The company applied to the Special Commissioners for the issue of a closure notice under paragraph 33 of Schedule 18 to FA98. The question arose in the course of the proceedings as to whether the Commissioners had power to determine a question of law and, in particular, whether they could refer a matter to the ECJ. The Inland Revenue submitted that, for the purposes of applications for closure notices, all that mattered was their view as to the law or the reasonableness of their view. 26. The Special Commissioners disagreed. They decided to make a reference to the European Court immediately so that it could be heard together with the previous reference (Cadbury Schweppes). If the CFC provisions were unenforceable, there could be no reasonable grounds for the enquiry to continue. 27. The High Court agreed with the decision of the Commissioners. At [37] of its judgment Park J held: “If the reasonableness of the grounds for not issuing a closure notice depends on a question of law which the Commissioners can decide, surely the right course is for them to decide it. Or at the very least it must be open to them to decide it.” 28. The mere fact that the issue might need to be referred to the ECJ for its resolution was an irrelevance. That was simply the mechanism for deciding the legal question. He considered that the result was not unreasonable, unworkable or disruptive. He dismissed a concern that applications under paragraph 33 of Schedule 18 to FA98 could be used to bring enquiries prematurely to an end. At [43] of his judgement he commented as follows: “Paragraph 33 is meant to be a protection to a taxpayer, by giving it a procedure whereby, if it believes that an enquiry is being inappropriately protracted and pursued by the Revenue, it can bring the matter before the independent and specialist tribunal. The Special Commissioners can, I believe, be relied upon to spot cases where the procedure is being abused and to give short shrift to applications in such cases.” 29. The Inland Revenue appealed but the appeal was dismissed by the Court of Appeal. Lady Justice Arden (as she then was) gave a judgement with which Lord Justice Moore-Bick and Lord Justice Mummery agreed. At [18] Lady Justice Arden referred to the main point made by the Inland Revenue that there was no power under paragraph 33 of Schedule 18 to FA98 for the Commissioners to “determine incidental questions of law”
“[19] If the Revenue are right on this point, it would mean that the Commissioners' role under paragraph 33 is to be satisfied that the Revenue have reasonable grounds for not giving a closure notice within a specified period so that they can continue with their factual investigation. But there are no words of limitation in paragraph 33 which would serve to restrict the Commissioners' role to that of scrutinising the factual investigation being performed by the Revenue. […] [21] Paragraph 33 on its face, however, would seem to confer on the Commissioners a power to do anything that the Commissioners reasonably consider necessary to enable them to be satisfied as to the matters required by that paragraph. That interpretation also promotes the effectiveness of paragraph 33, which it may be presumed Parliament wished to achieve. On that basis it is legitimate to put the question in the following way, that is to ask whether there is anything in the wording of paragraph 33 to suggest that it does not confer jurisdiction to decide incidental points of law, that is points of law that need to be resolved in order to decide whether there are reasonable grounds for not giving a closure notice. […] [22] […] it is difficult to see why Parliament should wish to limit the protection given to taxpayers by paragraph 33 to situations where the Revenue is pursuing enquiries into the facts which it can be shown are unfounded as a matter of fact, and not wish to extend the same protection to cases where the Revenue is proceeding on the basis of a particular view of the law, to which the taxpayer raises a serious challenge which the Commissioners can conveniently deal with at that stage. It would mean that the taxpayer would have to resort to judicial review.” 30. Lady Justice Arden then considered the quite different question as to the exercise of the Commissioners' power to determine incidental questions of law. On that question she held as follows at [25]: “There are likely to be cases where it is not possible to say that a point of law raised by a taxpayer needs to be, or can be, determined before a closure direction application under paragraph 33 is determined. It will be a matter that the Commissioners will have to consider in the light of the facts surrounding the particular application before them. […] In the present case the Commissioners took into account that the burden on the taxpayer of investigating the facts would be considerable (paragraph 113 of the decision of the Commissioners). I agree that that is a relevant consideration in a decision whether to determine a preliminary point of law before dealing with a paragraph 33 application.” 31. Lady Justice Arden also dismissed at [26] an argument by the Inland Revenue to the effect that jurisdiction under paragraph 33 of Schedule 18 to FA98 to determine incidental points of law would render otiose paragraph 31A of that Schedule (a mechanism for both parties to agree to submit questions to the Special Commissioners for determination): “The two provisions do not cover the same ground. A point of law for the purposes of paragraph 33 would have in general to be so fundamental as to be capable of bringing the enquiry to a halt if decided in a particular way. This will not always be the case under paragraph 31A.””
“32. In my view, a number of propositions can be taken from the Court of Appeal's decision in Vodafone 2, namely: (1) paragraph 33 of Schedule 18 to FA98 has no words of limitation relating to the way in which the tribunal should approach the question as to whether HMRC have reasonable grounds to continue with an enquiry: if it is necessary to determine a question of law, the tribunal is free to do so; (2) that operates in conjunction with “situations where the Revenue is pursuing enquiries into the facts which it can be shown are unfounded as a matter of fact”: the same protection to the taxpayer to seek a closure notice in relation to those situations should apply to ones where a view of the law is unfounded; (3) the facts surrounding the particular application before the tribunal will have to be considered and a relevant consideration will be whether determining a point of law would mean that a considerable burden on the taxpayer of investigating facts would be lifted; and (4) a point of law that falls to be determined in the proceedings for the application would, in general, have to be so fundamental as to be capable of bringing the enquiry to an end. 33. Applying those propositions to the circumstances of this case, none of them, in my judgment, provide much assistance to Mr Gordon. Indeed, the way in which the Court of Appeal approached the enquiry in the normal case as one where HMRC were conducting enquiries into facts that were “unfounded” might be said to point in the opposite direction, suggesting, as it does, that the relevant test of reasonableness is set at a level where the facts show an “unfounded” investigation. Moreover, the ratio of the case is, clearly, addressed to the issue as to whether the tribunal had jurisdiction to determine points of law and, for that purpose, to make references to the Luxembourg court for a preliminary ruling. That is evident from the detailed reasoning of the Court of Appeal but is also clearly stated at [2] of their judgment. In these proceedings, there is no material dispute about the law. The dispute is about the application of the law to the particular facts of the case. And Vodafone 2 was not concerned with such a case.”
“ What is required is a broad, merits-based judgment, taking account of all the facts and circumstances. The proper approach is to ask whether in all the circumstances a party's conduct is an abuse. Although that will often give the same result as asking whether the conduct is an abuse and then, if it is, asking whether the abuse is excused or justified by special circumstances, it will not invariably do so, and it is always necessary for the question of abuse to be considered by reference to all the circumstances of the individual case .”
“62. …the FTT must be satisfied that in all the circumstances, the officer giving the notice is justified in concluding that the information or documents are reasonably required for checking the tax position of the taxpayer. Again, that does not require any examination of the nature and extent of the underlying tax investigation, but rather a focus on whether there is a rational connection between the information and documents sought and the underlying investigation. The very purpose of the investigation is to establish the correct position by reference to all the evidence gathered and it is therefore unsurprising that the legislation does not make the approval of a notice conditional on the tax investigation itself being reasonably required. 63. Fourthly and in light of those conclusions, I do not agree with Mr Simpson that the facts support a conclusion that no reasonable officer could have concluded that the information and documents are reasonably required in this case. That the STA may already have evidence that leads it to believe the Claimant was resident in Sweden for tax purposes does not mean that the AMEX information is not reasonably required. This further information may add support to the STA's case and be required for that reason, or alternatively it may undermine the evidence so far available leading to the conclusion that the Claimant is not tax resident in Sweden. On either basis that there is existing evidence pointing in one direction does not mean that additional evidence that may shed light on this very question is not reasonably required. 64. The submissions made by Mr Simpson on the facts seem to me to underscore that there is a real dispute as to the Claimant's correct tax residence status and that the information sought is, at least potentially, directly relevant to that dispute. In particular, I do not accept the submission by Mr Simpson that all the credit card statements could show is that purchases were made from a particular retailer but saying very little about whether the Claimant was at any particular shop or retailer when the purchase was made. If the statements reveal spending necessarily linked to a geographical area, for example relating to meals or other consumables, accommodation or even transport, they are likely to support an inference that the purchase was made by the Claimant in a particular geographical area (here, in or near Billdal in Sweden) and to be relevant to the tax residence question. 65. It is therefore irrelevant that the STA has not explained why it is now enquiring into the Claimant's residence status or said what has changed. Similarly, although the operation of the relevant CFC rules is not clearly explained by the STA in its correspondence, that too is irrelevant: as Orrick said in the8 May 2018 letter, those rules are relevant only if the Claimant's tax residence in Sweden can be established. That is what is being checked at this stage of the investigation. In any event, the CFC rules may ultimately have no relevance at all because if the Claimant is liable to income tax in Sweden as tax resident there, he may have unlimited liability to tax on a worldwide basis (subject to double taxation issues) as Mr Simpson accepted. None of the factual points raised are knock-out blows that establish beyond dispute that the Claimant is not or cannot be tax resident in Sweden in the relevant period. Nor do the points raised on behalf of the Claimant show the investigation to be a sham or pursued in bad faith. Mr Simpson expressly disavowed any allegation of bad faith and the arguments advanced do not begin to displace the presumption that both the STA and HMRC (in providing assistance) are conducting a genuine investigation and exercising their investigation powers honestly and in good faith.”
“(1) The procedure is intended as a protection to a taxpayer against enquiries being inappropriately protracted, providing a “reasonable balance” to HMRC's substantial powers to investigate returns (HMRC v Vodafone 2[2006] STC 483 at [33] and [34]) and protecting the taxpayer against undue delay or caution on the part of the officer in closing the enquiry (Eclipse Film Partners No 35 LLP v HMRC [2009] STC (SCD) 293 at [17]). The Tribunal is required to exercise a value judgment, determining what is reasonable on the facts and circumstances of the particular case (Frosh at [43]). This involves a balancing exercise. (2) The reasonable grounds that HMRC must show must take account of proportionality and the burden on the taxpayer (Jade Palace Limited v HMRC [2006] STC (SCD) 419 at [40]). (3) The period required to close an enquiry will vary with the circumstances and complexity of the case and the length of the enquiry: complex tax affairs and large amounts of tax at risk are likely to extend an enquiry, but the longer the enquiry the greater the burden on HMRC to show reasonable grounds as to why a time for closure should not be specified (Eclipse Film Partners, and Jade Palace at [42] to [43]). It may be appropriate to order a closure notice without full facts being available if HMRC have unreasonably protracted the enquiry: see Steven Price v HMRC[2011] UKFTT 264 (TC) at [40]. (4) A closure notice may be appropriate even if the officer has not pursued to the end every line of enquiry. What is required is that the enquiry has been conducted to a point where it is reasonable for the officer to make an “informed judgment” of the matter (Eclipse Film Partners at [19]). (5) If it is clear that further facts are or are likely to be available or HMRC has only just received requested documents and may well have further questions, then a closure notice may not be appropriate: see for example Steven Price, and also Andreas Michael v HMRC[2015] UKFTT 577 (TC) . The Tribunal should guard against an inappropriate shifting of matters that should be determined by HMRC during the enquiry stage to case management by the Tribunal. However, the position will turn on the facts and circumstances of each case: Frosh. (6) The Supreme Court's comments on the subject of closure notices in HMRC v Tower MCashback LLP[2011] UKSC 19 ,[2011] 2 AC 457 are highly relevant. In particular, Lord Walker commented that whilst a closure notice can be issued in broad terms, an officer issuing a closure notice is performing an important public function in which fairness to the taxpayer must be matched by a “proper regard for the public interest in the recovery of the full amount of tax payable”, although where the facts are complicated and have not been fully investigated the “public interest may require the notice to be expressed in more general terms” (paragraph [18]). Lord Hope also said at [85] that the officer should wherever possible set out the conclusions reached on each point that was the subject of the enquiry. In Frosh the Upper Tribunal commented at [49] that a closure notice in broad terms is “not the norm” and so should not be taken as an appropriate yardstick for assessing whether HMRC's grounds for not closing the enquiry are reasonable.”
“ …the expression 'unlimited time' requires some further definition. A man might remove to another country because he had obtained employment there without knowing how long that employment would continue but without intending to reside there after he ceased to be so employed. His prospective residence in the foreign country would be indefinite but would not be unlimited in the relevant sense. On the other hand,…I do not think that it is necessary to show that the intention to make a home in the new country is irrevocable or that the person whose intention is under consideration believes that for reasons of health or otherwise he will have no opportunity to change his mind. In my judgment, the true test is whether he intends to make his home in the new country until the end of his days unless and until something happens to make him change his mind ”; (b) Scarman J in Fuld said the following at pages 684 and 685 : “…a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact - of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities…It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres. And, if he has acquired but abandoned a domicile of choice either because he no longer resides in the territory or because he no longer intends to reside there indefinitely, the domicile of origin revives until such time as by a combination of residence and intention he acquires a new domicile of choice ” ( Fuld at pages 684 and 685); and (c) Arden LJ in Barlow Clowes International Limited v Henwood[2008] EWCA Civ 577 (“ Barlow Clowes ”) said the following at paragraph [14]: “ Given that a person can only have one domicile at any one time for the same purpose, he must in my judgment have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days ” (see also in this respect Lord Cairns in Bell v Kennedy (1868) LR 1 Sc and Div 307 at page 311); (5) since the acquisition of a domicile of choice depends on both residence and intention, it is clear that length of residence in a particular jurisdiction cannot of itself lead to the conclusion that the propositus has acquired a domicile of choice in that jurisdiction. In Agulian , the propositus in question had resided in England for around 43 years (see Agulian at paragraph [25]). In Bullock , the propositus in question had resided in England for some 40 years (see Bullock at pages 1181 and 1182). In both cases, the propositus was found not to have acquired a domicile of choice in England. In Udny , the Lord Chancellor, Baron Hatherley noted as follows: “ Time is always a material element in questions of domicil; and if there is nothing to counteract its effect, it may be conclusive upon the subject. But in a competition between a domicil of origin and an alleged subsequently-acquired domicil there may be circumstances to shew that however long a residence may have continued no intention of acquiring a domicil may have existed at any one moment during the whole of the continuance of such residence. The question in such a case is not, whether there is evidence of an intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil. As already shewn, the domicil of origin remains till a new one is acquired animo et facto ”; (6) the decision in Bullock is of particular relevance in this case given the length of time in which the propositus had had his main residence in England and the propositus’s intention to return to his domicile of origin if his wife predeceased him. In that case, Buckley LJ said the following at page 1185: “ In the present case the commissioners, adopting the language of Lord Chelmsford in the passage from Moorhouse v Lord ((1863) 10 HL Cas 272 at 285, 286) which I have already cited, expressed the view that the taxpayer had in contemplation some event (that is his wife's change of mind or prior death), on the happening of which his residence in England would cease. They therefore concluded that he had not acquired a domicile of choice in England. The learned judge, on the other hand, was very much impressed by the fact that the taxpayer had established his matrimonial home in England and that there was no foreseeable prospect of that matrimonial home ever being established elsewhere. He clearly regarded this as the decisive factor in deciding that the taxpayer had acquired a domicile of choice in England. For the purpose of determining the true nature and quality of the taxpayer's intention it is clearly necessary to take into account all relevant circumstances. Domicile is distinct from citizenship. The fact that the taxpayer chose to retain his Canadian citizenship and not to acquire United Kingdom citizenship would not be inconsistent with his having acquired a domicile in the United Kingdom, but his adherence to his Canadian citizenship is, in my opinion, one of the circumstances proper to be taken into consideration in deciding whether he did acquire a United Kingdom domicile. The declaration as to domicile contained in the taxpayer's will is also a matter to be taken into account, although the weight to be attributed to it must depend on the surrounding circumstances. Undoubtedly the fact that a man establishes his matrimonial home in a new country is an important consideration in deciding whether he intends to make that country his permanent home (see, for example, Forbes v Forbes: Platt v Attorney General of New South Wales ((1878 3 App Cas 336 at 343); Attorney General v Yule ((1931) 145 LT 9 at 14)), but this is not a conclusive factor. In Forbes v Forbes (Kay 341 at 366) Page-Wood V-C said: 'The effect of the residence of the wife being, after all, but evidence of intention, may be rebutted by stronger evidence of a contrary character.' The learned judge disregarded as remote the theoretical possibility that the taxpayer might somehow persuade his wife to live in Canada or that she might change her mind and reconcile herself to life in Canada. I think he was justified in so doing on the findings made by the commissioners. I am consequently prepared to accept that in the present case the matrimonial home will continue to be in England as long as both the parties to the marriage survive. It is, I think, clear however from the findings of the commissioners that the taxpayer has never abandoned his intention of returning to live in Canada in the event of his surviving his wife. The taxpayer's wife is some three or four years younger than he is and her health is good. The taxpayer said in his evidence before the commissioners that he would put the possibility of her predeceasing him at no higher than a possibility, and considered it an even chance which of them might die first. We must, in my opinion, proceed on the footing that the possibility of the taxpayer surviving his wife is not unreal, and that he is at least almost as likely to survive her as she is to survive him. No doubt, if a man who has made his home in a country other than his domicile of origin has expressed an intention to return to his domicile of origin or to remove to some third country on an event or condition of an indefinite kind (for example, 'if I make a fortune' or 'when I've had enough of it'), it might be hard, if not impossible, to conclude that he retained any real intention of so returning or removing. Such a man, in the graphic language of James LJ in Doucet v Geoghegan ((1878) 9 Ch D 441 at 457), is like a man who expects to reach the horizon; he finds it at last no nearer than it was at the beginning of his journey. In Aikman v Aikman ((1861) 4 LT 374 at 376) Lord Campbell LC said that a mere intention to return to a man's native country on a doubtful contingency would not prevent residence in a foreign country putting an end to his domicile of origin ”
“Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined carefully considering the persons to whom, the purposes for which, and the circumstances in which they are made and they must however be fortified and carried into effect by conduct and action consistent with the declared expressions ”
“ It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard? In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin "is more enduring, its hold stronger and less easily shaken off." In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings. The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words”; (11) the reference in the above passage to the adhesive nature of the propositus’s domicile of origin raises the question of whether the standard of proof might vary depending on whether that which is sought to be shown is the acquisition of a domicile of choice (and the consequent loss of a domicile of origin) or the loss of a domicile of choice. More importantly in this context, it also raises the question of whether a domicile of origin might be more adhesive - and therefore the standard of proof in establishing that that domicile of origin has been replaced by a domicile of choice might be higher - if the propositus has always had (and retains) a strong connection with his or her domicile of origin than if the propositus’s link to his or her domicile of origin has always been, or has become, more tenuous - see, in this respect, Henderson at paragraphs [22] and [23]; (12) in Henderson , reference was made to the following passage from the decision of Arden LJ in Barlow Clowes : “ 92. Secondly, it is said that as a practical matter it is easier to establish that the domicile of origin has been retained because it is associated with a person's native character and thus presumably in most cases it can be inferred that he would have wanted that domicile. Thus, for example, Sir William Scott in La Virginie 5 Rob Adm 99, quoted in Udny at 451, said: “It is always to be remembered that the native character easily reverts, and that it requires fewer circumstances to constitute domicile in the case of the native subject than to impress the national character of one who is originally of another country.” 93. But that second rationale does not apply universally. The following examples spring to mind. There can be cases where the subject never had the national character of his domicile of origin or has specifically disclaimed his intention to reside in his domicile of origin or where that domicile is not relevantly distinctive. There can be cases where the subject never had any real connection with the country of his domicile of origin because he was brought up elsewhere. Cases where a person only has a domicile of origin because it has arisen under the default rule as I have referred to it above may fall into the last category, at least where the subject was unaware of the revival of the domicile of origin. There can be persons who (like Mr Henwood) have developed an aversion to their country of origin. There can also be cases where the contest is between two jurisdictions within the same federal or quasi-federal system, and the “native character” of citizens of one state may be little different from that of citizens of another state. 94. It seems to me that as a general proposition the acquisition of any new domicile should in general always be treated as a serious allegation because of its serious consequences. None of the authorities cited to us preclude that approach, and such an approach ensures logical consistency between two situations where the policy interest to be protected is (as demonstrated above) the same. However, what evidence is required in a particular case will depend on the application of common sense to the particular circumstances. In this case, Mr Henwood had an aversion to England because of childhood memories. If his domicile of origin arose at all in this case, it arose only because of the default rule. In those circumstances, it is not improbable that he would wish to acquire a domicile of choice elsewhere and accordingly there is no reason why the court should approach a case that he has done so with undue scepticism. There were of course other reasons why certain evidence adduced by Mr Henwood, namely that he had created, was to be approached with caution. But that was a wholly separate matter. 95. Accordingly, although the judge's approach was not internally consistent (and is open to criticism on that basis), I do not consider that he had to consider whether evidence to meet a more serious case had been adduced if there was an interval of time when under the default rule his domicile of origin revived. 96. For the reasons given above, I would respectfully disagree with the following dictum of Longmore LJ in Agulian, relied on by Mr Vos, in so far as it lays down any general rule of law: “….it is easier to show a change from one domicile of choice to another domicile of choice than it is to show a change to a domicile of choice from a domicile of origin.” ([56])””; (13) I agree with the conclusion reached in Henderson that “ there is no separate free-standing rule of law ” as regards the adhesiveness of a domicile of choice and that each case will always turn on its own specific facts. However, more importantly in the context of these proceedings, it is necessary to consider whether the standard of proof might be affected by the level of the propositus’s attachment to his or her domicile of origin; (14) in that regard, I have taken note of the observations of Arden LJ in Barlow Clowes , to the effect that the strength of the links between the propositus and his or her domicile of origin may well be a relevant factor in considering whether the propositus has acquired a domicile of choice in a different jurisdiction because, in circumstances where there is no attachment to a domicile of origin, “ it is not improbable that [the propositus] would wish to acquire a domicile of choice elsewhere ”
“ All the cases state that a domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice ”; and (16) similarly, the standard of proof is the ordinary civil standard of the balance of probabilities - see King LJ in Kelly at paragraph [33ii)], citing with approval the statement in Dicey to the effect that “ the standard of proof [is] the ordinary civil standard. Cogent and clear evidence is needed to show that the balance of probabilities has been tipped regardless of whether the issue is the acquisition, or loss, of a domicile of choice ”
“ Although it is helpful to trace [the propositus’s] life events chronologically and to halt on the journey from time to time to take stock, this question cannot be decided in stages. Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that “Life must be lived forwards, but can only be understood backwards” resonates in the biographical data of domicile disputes .”