“[15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are… [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved…External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). [18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty…to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces… [20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been ‘refreshed’ by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. [21] … [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
“Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering thepersons to whom, the purposes for which, and the circumstances in whichthey are made, and they must further be fortified and carried into effect byconduct and action consistent with the declared expressions.”
“[the term] ‘residence’ means very little more than physical presence. But it does mean something more: thus a person is not resident in a country in which he or she is present ‘casually or as a traveller.’[and] ‘Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it.’A person’s state of mind may be relevant to the issue whether he or she is present in a country as a traveller or as an inhabitant; but, subject to this point, residence may be established without any mental element.”
“The mere fact of a man residing in a place different from that in which he has been before domiciled, even although his residence there may be long and continuous, does not of necessity shew that he has elected that place as his permanent and abiding home. He may have taken up and continued his residence there for some special purpose, or he may have elected to make the place his temporary home. But domicil, although in some of the cases spoken of as ‘home’, imports an abiding and permanent home, and not a mere temporary one.”
“By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.”
“I would venture to suggest that the definition of an acquired domicile might stand thus: that place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.”
“…liable to exception, in omitting one important element, namely, a fixed intention of abandoning one domicile and permanently adopting another. The present intention of making a place a person's permanent home can exist only where he has no other idea than to continue there, without looking forward to any event, certain or uncertain, which might induce him to change his residence. If he has in his contemplation some event upon the happening of which his residence will cease, it is not correct to call this even a present intention of making it a permanent home. It is rather a present intention of making a temporary home, though for a period indefinite and contingent. And even if such residence should continue for years, the same intention to terminate it being continually present to the mind, there is no moment of time at which it can be predicated that there has been the deliberate choice of a permanent home.”
“Whether the appellant, before the28th September 1838 , the day of the death of his wife, had determined to make, and had made Scotland his home, with the intention of establishing himself and family there, and ending his days in that country.”
“The question, as it seems to me, is not whether he had made up his mind to take up his residence elsewhere than in Scotland, but the question is, had he, prior to September 1838, finally made up his mind or formed a fixed intention to settle in Scotland?”
“it is a settled principle that no man shall be without a domicil, and to secure this result the law attributes to every individual as soon as he is born the domicil of his father, if the child is legitimate…this has been called the domicil of origin, and is involuntary. Other domicils…are domicils of choice. For as soon as an individual is sui juris, it is competent to him to elect and assume another domicil, the continuance of which depends on his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished and remains in abeyance during the continuance of the domicil of choice…It revives and exists whenever there is no other domicil.”
“Domicil of choice is a conclusion or inference which the Law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established.”
“A change of that domicil can only be effected animo et facto – that is to say, by the choice of another domicil, evidenced by residence within the territorial limits to which the jurisdiction of the new domicil extends. He, by making the change, does an act which is more nearly designated by the word ‘settling’ than by any one word in our language. Thus we speak of a colonist settling in Canada or Australia, or of a Scotsman settling in England, and the word is frequently used as expressive of the act of change of domicil in the various judgments pronounced by our Courts.”
“Before I go further into the facts of the case, I will just read one passage which expresses what is sufficient to acquire a domicile of choice, and to give up the domicile of origin. Lord Westbury in Udny v Udny…says: ‘Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief resident in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term…’”
“in order to determine a person's intention at a given time, you may regard not only conduct and acts before and at that time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency.”
“Now the law is plain, that where a domicil of origin is proved it lies upon the person who asserts a change of domicil to establish it, and it is necessary to prove that the person who is alleged to have changed his domicil had a fixed and determined purpose to make the place of his new domicil his permanent home. Although many varieties of expression have been used, I believe the idea of domicil may be quite adequately expressed by the phrase - Was the place intended to be the permanent home?”
“I take it to be clearly settled that no person who is sui juris can change his domicil without a physical change of place, coupled with an intention to adopt the place to which he goes as his home or fixed abode or permanent residence, whichever expression may be preferred. If a change of residence is proved, the intention necessary to establish a change of domicil is an intention to adopt the second residence as home, or, in other words, an intention to remain without any intention of further change except possibly for some temporary purpose.”
“Declarations as to intention are rightly regarded in determining the question of a change of domicil, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made and they must further be fortified and carried into effect by conduct and action consistent with the declared expression.”
“A classic description of the concept [of domicile] is to be found in Lord Westbury's speech in Udny v. Udny. Two features of his description are of particular importance in the present case. First, that the domicile of origin prevails in the absence of a domicile of choice, ie, if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.”
“(1) The domicile of origin adheres unless displaced by satisfactoryevidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in 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, eg, 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. (3) 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.”
“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.”
“In 1955, acting under advice, Peter Fuld asserted to the United Kingdom Tax authorities that he was domiciled in Germany. In a letter to the Inspector of Taxes, written on his behalf on November 30, 1955, it was said: ‘For the future Mr. Fuld intends primarily to reside with his mother permanently in Germany…’”
“Such a declaration as that which I have quoted to the United Kingdom tax authorities is far from conclusive. On the contrary, it must be treated with great caution since it was made to advance a claim for tax relief. A wealthy man cannot, by his interested declarations, alter the facts of his life. Yet if he be, as Peter Fuld was, an honest man, honestly advised, it would be taking too cynical a view to disregard such a declaration altogether.”
“The effect upon a man of a change of domicile is to make the law of his new domicile his personal law in place of the law of his previous domicile. The intention which has to be sought, however, is not a conscious intention to achieve this result. I think it would be unusual for anyone who changed his domicile to have done so consciously or primarily for the purpose of subjecting himself to the legal system of his new country. The intention which must be sought is an intention on the part of the person concerned to make the new country his permanent home.”
“In defence of Kindersley V.-C. it seems to me only fair to remark that, since no man can have more than one domicile at one time, the act of acquiring a new domicile must necessarily involve the abandonment of the previous domicile. That this was present to the mind of the vice-chancellor is clear from later passages in his judgment in Lord v. Colvin, for example at p. 422, where he referred to a man intending to abandon an acquired domicile and to resume his domicile of origin or to his abandoning his domicile of origin to acquire a domicile of choice. In truth the insistence of Lord Chelmsford upon the importance of finding a fixed intention of abandoning one domicile and permanently adopting another is but a method of emphasising the importance of finding that the person in question intends to make his new country his permanent home. The abandonment of the previous home is implicit in the adoption of the new home, if the latter is intended to be exclusive and permanent. A man may have homes in more than one country at one time. In such a case, for the purpose of determining his domicile, a further inquiry may have to be made to decide which, if any, should be regarded as his principal home. We are not concerned, however, with any considerations of that sort.”
“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.”
“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 properly to be taken into consideration in deciding whether he acquired a United Kingdom domicile.”
“There can no longer be any doubt as to the test appropriate to the abandonment of a domicile of choice. The leading case on the subject is Udny v. Udny…Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it. If the necessary intention is also there, an existing domicile of choice can sometimes be abandoned and another domicile acquired or revived by a residence of short duration in a second country. But that state of affairs is inherently improbable in a case where the domiciliary divides his physical presence between two countries at a time. In that kind of case it is necessary to look at all the facts in order to decide which of the two countries is the one he inhabits.”
“The taxpayer was born in London in 1965 of English parents. In 1980 her mother and younger sister moved permanently to Guernsey and her father, who worked in London, went there at weekends and for holidays. The taxpayer was at that time at a day school in London. In 1981 she went to boarding school in Somerset and in 1984 to London University. Whenever possible she went to her family in Guernsey for weekends and holiday periods. During the fiscal year 1983–84 she spent 106 days in Guernsey and the following year 83 days there.”
“while I find the contrast between an inhabitant and a person casually present useful to describe the minimum quality of residence which must be taken up in a new country before a domicile there can be acquired, the concept of being an inhabitant seems to me less illuminating in cases of dual or multiple residence such as the present.”
“I infer from this sentence…that a person who retains a residence in his domicile of origin can acquire a domicile of choice in a new country only if the residence established in that country is his chief residence.”
“a person whose presence in a new country is sufficient to amount to residence may, notwithstanding that his chief residence remains in his domicile of origin, acquire a domicile of choice by evincing an intention to continue to reside permanently in the new country.”
“I go further and say that in my judgment it was the right conclusion. If the taxpayer had in 1980 broken altogether with England and settled in Guernsey like her mother and sister and then, even after a relatively short interval, returned to England for study, the quality of her presence here might have been such as to prevent a revival of her domicile of origin. But the fact is that she has not yet settled in Guernsey, and the reasons why she has been unable to do so are in my view irrelevant. When there is no competing place of continuing residence, settlement may be established by presence for a very short time; even for a single day. But as Nourse J. pointed out in Inland Revenue Commissioners v. Duchess of Portland[1982] Ch. 314 , 319, an inference of settlement from a short stay is difficult to draw when the person in question divides his physical presence between two countries at a time. To treat the house in Guernsey as her chief residence simply because it is the sole residence of her mother and sister would in my view be attributing to her a kind of quasi-dependent domicile for which there is no legal justification. And the fact that the taxpayer may intend to settle in Guernsey after her education and training are completed and then to remain permanently is not sufficient to give her a proleptic domicile of choice.”
“it must be shown that (1) the propositus has ceased to reside in the territory in which he had a domicile of choice and that (2) the propositus has no intention to return to reside there (as opposed to an intention not to return). The absence of intention must be unequivocal, so that a person is in two minds does not have the necessary absence of intention. In addition, the abandonment of a domicile of choice is not to be lightly inferred.”
“I agree with the judgment of Mummery LJ. In particular I agree that Scarman J in Re Fuld (No 3)[1968] P 675 684E-686D correctly set out the principles by which English law determines whether a domicile of origin has been replaced by a domicile of choice. These principles cannot be revisited by this court stemming as they do from Udny v Udny (1869) LR 1 Sc&Div 441, Winans v Attorney-General[1904] AC 287 , [1904-7] All ER Rep 410 and IRC v Bullock[1976] 1 WLR 1178 . 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.”
“A man may have homes in more than one country at one time. In such a case, for the purpose of determining his domicile, a further inquiry may have to be made to decide which, if any, should be regarded as his principal home.”
“The formulation of the applicable test in Udny requires both a chief residence and also an intention to continue to reside indefinitely. Thus the question whether a person's residence is his chief residence is part of the first limb of the test rather than the second. The test is predicated on the fact that a person has a residence in each of the competing territories. Plainly, therefore, residence alone is not enough to satisfy the first limb of the test where a person has two or more residences. If a person has two or more residences in different territories, which is his chief one?”
“one cannot determine a person's chief residence merely by taking a snapshot at a particular moment in time. It seems probable, as a matter of common sense, that the further one gets from the point at which a domicile of choice is alleged to have been acquired, the less cogent will be any inference that one can draw from conduct. But that is a question of evaluating the evidence, rather than saying that it is irrelevant.”
“does an act which is more nearly designated by the word ‘settling’ than by any one word in our language. Thus we speak of a colonist settling in Canada or Australia, or of a Scotsman settling in England.”
“The court has to look at the quality of the residence in order to decide in which country the subject has an intention to reside permanently. Provided that task is carried out, the chief residence in the sense that term is used in this context has in fact been identified.”
“Domicile of choice is a conclusion or inference which the Law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time.”
“Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.”
“Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice.”
“In December 2005 he was only 57 years old and had an active business life. He is unlikely in reality to have been thinking of where he would wish to spend his last days.There was no evidence of ill health. But another test that can be applied is to ask where, if anywhere, he had settled. I say 'if anywhere' because Mr Henwood travelled frequently…”
“So the question is whether Mr Henwood has established on a balance of probabilities that he has a domicile of choice in Mauritius. He has had a residence there for many years. But it is the quality of his residence that matters and thus he has in effect to show that he preferred Mauritius to any other place in the world. He said that was so, but then of course these were self-serving statements…”
“Determining which is the chief or principal residence involves considering the quality of the subject's residence.”
“[103] This decision [ie Plummer] is criticised by Dicey, Morris and Collins in The Conflict of Laws, which seems to suggest that the decision overlooked the point that questions as to the quality of residence are primarily relevant to the question whether the person had the requisite intention of permanent or indefinite residence (see pp 133–134). For my part, I do not consider that this criticism is correct since it is clear that Hoffmann J recognised that the test of chief residence involved a consideration of factors throwing light on the subject's intention. He thus went on to reject the submission of counsel for the taxpayer that all the commissioners had done was to count the number of nights the taxpayer had spent in the UK rather than consider the quality of her residence. Hoffmann J rejected that argument, not on the grounds that it was misconceived in law but on the grounds that the commissioners had indeed considered the quality of residence in Guernsey. [104] Inevitably, any test of chief residence is circular. It cannot simply be a reference to the main home in terms of size or amenities. Nor can it be a reference to the home in which the subject spends the most time. The court has to look at the quality of the residence in order to decide in which country the subject has an intention to reside permanently. Provided that task is carried out, the chief residence in the sense that term is used in this context has in fact been identified. [105] In fact, the judge [Evans-Lombe J] in effect directed himself that he needed to ascertain the chief residence. Thus, at para [J27], he stated that if he was satisfied that France was more of a home than Mauritius, Mr Henwood would fail to establish a domicile of choice in Mauritius. The judge was using the term 'home' in the sense of a permanent home. This appears from para [J51], where he says: 'In my view it is highly unlikely that any married couple would deliberately abandon the idea that they had a home where they were based or to which they would not wish ultimately to return.' [106] In Whicker v Hume (1858) 10 HLC 124, at 160, Lord Cranworth said: 'By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.' [107] Accordingly, it was permissible for the judge to use the concept of home in this context.”
“I am grateful to Arden LJ for her description of the circumstances giving rise to this appeal and her exposition of the law relating to the acquisition and loss of domicile with which I agree and which I gratefully adopt..”
“where a person maintains homes in more than one country the question must be decided by reference to the quality of residence in each of those countries, since it is only by considering the quality of residence that one can decide which is his real home.”
“The question then is whether the evidence ever established that Mr Henwood thereafter acquired a domicile of choice anywhere and in particular whether he could establish Mauritius as opposed to France. The evidence did not establish the requisite intention.”
“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.”
“the reference to 'singular and distinctive' and 'ending his days in that country' must be considered in the context of the requirement for there to be a fixed intention to reside in a country for the indefinite future. In my judgment, temporary residence of eleven months, but with an expressed intention to retire to this country in several decades time is not enough without more cogent evidence with which to loosen the strong ties with a domicile of origin and to create a replacement domicile of choice.”
“It follows that on the facts of a case that a judge may well find that a person working abroad has nevertheless acquired a domicile of choice in England, but such a conclusion will only be reached after careful consideration of all the facts. In such a case, one would expect that England would truly be ‘home’, and that, all the evidence would point to that person as regarding him or herself as ‘living in England but working abroad’.”
“Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise”
“It has been suggested [by Hoffmann J. in Plummer] that the distinction between an inhabitant and a person casually present is of limited value in cases of dual or multiple residence, as a person who retains a residence in the domicile of origin can acquire a domicile of choice in a new country only if the residence established in that country was a ‘‘chief residence’’[An expression used by Lord Westbury in Udny. The determination of a chief residence’ will include an assessment of the quality of the residence: Plummer at p 295; Barlow Clowes at [103]]. It is, however, submitted that questions as to the quality of residence are primarily relevant in considering whether the propositus has the animus manendi, the intention of permanent or indefinite residence [Morgan].”
“I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.”
“Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts.”
“[91] …In an increasingly cosmopolitan world, where migration is not confined to higher socio-economic groups and travel and communication is much easier, it is likely that many people will be as attached to a domicile of choice they have acquired as to a domicile of origin which they enjoyed originally. The law should reflect that fact. [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… [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… [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…the same. However, what evidence is required in a particular case will depend on the application of common sense to the particular circumstances.”
“it is more difficult to prove that a person has abandoned his domicile of origin than to prove that he has abandoned a domicile of choice.”
“The understanding between Ian and myself, very specifically, was that we would move to the UK to take advantage of a great job opportunity and for an adventure. Both Ian and I have a sense of adventure, and we had both lived in many different places in the world prior to meeting each other. We viewed this move very simply as a further adventure and a temporary one.”
“It was located in the countryside in a somewhat isolated area, two hours from the nearest large airport and far from a good hospital. Further, there was not much to do there for our children and grandchildren when they visited.”
“given the global nature of the companies with which I became involved, it made perfect sense to continue to live in London, a world financial centre in a convenient geographic location and time zone.”
“he saw this as an opportunity to give something back to the community at large: Learn, Earn, and Return. The question was what and where and how. He was adrift, wasn’t sure what to do. He talked to all friends in America and in London and the position at Ashoka arose, actually through the husband of one of my golfing friends. He explained to Ian what it was all about: you act as a sponsor for social entrepreneurs, start-ups doing something good for society, they are matched with people who have experience, like my husband, given what he knew about strategy, corporate governance, international and corporate business. Ashoka has a network in America but he didn’t know the US business scene. He knew the British and international business scene well. He made a big contribution from 2016 – it was the perfect thing for him to do. That’s why we stayed.”
“since much of my recent business experience has been in the UK, I can offer the most value to this organisation by remaining here for the time being.”
“in sound mind and body and well able to make a contribution (albeit unpaid) at Ashoka, beyond what might be considered a normal retirement age…the idea of a complete retirement at this point is, for me, premature.”
“When I retired from full time work in 1999, with the prospect of more flexibility in my working schedule, we put our minds to finding a place where we could spend long weekends away from London. On the advice of European friends, we chose to look in Sotogrande, a development in southern Spain very near Gibraltar. We acquired our apartment there for£219,000 on12 December 2000 …[it] has 3 small bedrooms and two baths, a very tiny kitchen and only one common room: a living room with dining area. In Sotogrande we found not only wonderful light, warmth and very good golf, we also immersed ourselves in Spanish culture and made Spanish friends. My wife immediately set about learning Spanish and we joined two golf clubs. In the early years, we regularly visited Sotogrande 6-7 times a year for an average of 30 days per year.”
“become very close to my wife’s sisters, brother and her in-laws, as well as many of her cousins, whereas in England I have only my two siblings who I rarely see, and two nieces whom I don’t know well.”
“I first made my decision to reside permanently and indefinitely in Massachusetts in the autumn of 1999. By that time, since becoming engaged to my current wife 12 years before, I had visited that state already 19 times for personal reasons…The following events caused me to choose Massachusetts as my permanent home: at the end of 1998 I had resigned my position as CEO of BTR…by the Autumn of 1999 I had decided not to look for a full time position…” (5) He continued by saying that at Christmas 1999 he and Mrs Strachan had spent a day with an estate agent looking at properties in Massachusetts, but “did not see anything that suited us” and they had later contemplated purchasing Mrs Strachan’s grandmother’s house, but rejected that option as the house needed “a total renovation and was in any event much too large”. (6) On31 July 2018 , Mr Strachan told HMRC that his and Mrs Strachan’s intention was “to sell our London house and move back to Manchester in the summer of 2022”. (7) On8 November 2018 , he told HMRC that they could have rented a similar property in Massachusetts for their visits there, and this would have cost around$50k , about half the cost of owning and operating Masconomo Street; in addition, they were bearing the opportunity cost of tying up so much capital in that property. He concluded by saying: “it is difficult to imagine any reason to spend this extra money, or to incur the usual headaches of home ownership, other than our desire to own the home to which we will retire”. (8) In the same letter, in a passage to which reference has already been made at §267, Mr Strachan said that during his life: “every decision made and every action taken, from the age of 22 and continuing through to the present day point to an unwavering intention to end my days in the United States, and, since 2006, specifically in Manchester by the Sea…I will end my days in that house. Why? Because my daughter, step-children and all my grandchildren live in the United States. Because I have become very close to my wife’s sisters, brother and her in-laws, as well as many of her cousins, whereas in England I have only my two siblings who I rarely see, and two nieces whom I don’t know well. And finally, because I gave my heart to America when I was 22 years old.”
“…if I had had any sense that Ian viewed his potential move to London as ‘going home’ or as a permanent resettlement I would not have married him. Since my separation from my first husband in 1977, when he and I moved to cities that were nearly 3,000 miles apart, I had been the one point of unbroken stability for my two children whose lives had been severely disrupted by their parents’ separation. It would have been completely unthinkable for me to disrupt those lives again by essentially abandoning them to move to another country.”
“The initial three-year commitment [to Ashoka] would cover him to 2019 – we knew that would keep us in London until he was at least 76. When that ended in 2019, he decided to extend that period: he loved what he was doing. I am not sure why you feel it so important that we move from the UK when my husband was vigorous, active, eager to make a contribution. If we had moved to Massachusetts at that time [in 2016], he would have had nothing to do except play golf in summer and read history books in the winter. I don’t know the rush to take a human being out of the country; he was still able to make a contribution to this country, thank you very much. I am not sure why you are trying to push my husband out of the country when he is still making a contribution, and go somewhere where he cannot.”
“we had some of those conversations around 2006 when they were buying the Manchester home and those conversations became more explicit and frequent around the time that Peggy and Ian did a lot of work on the Manchester property, two or three years later.”
“in order to determine a person's intention at a given time, you may regard not only conduct and acts before and at that time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency.”
“Mr Strachan no longer has copies of the Coopers and Lybrand submission to HMRC or HMRC’s answer, but these might be in your files. He did ask Coopers and Lybrand (now PwC) to search their archives but their search has proved fruitless…”
“(1) If an officer of the Board or the Board discover, as regards any person (the taxpayer) and a year of assessment (a) that an amount of income tax or capital gains tax ought to have been assessed but has not been assessed… the officer or, as the case may be, the Board may, subject to subsections (2) and (3) below, make an assessment in the amount, or the further amount, which ought in his or their opinion to be charged in order to make good to the Crown the loss of tax (2) … (3) Where the taxpayer has made and delivered a return under section 8…of this Act in respect of the relevant year of assessment, he shall not be assessed under subsection (1) above (a) in respect of the year of assessment mentioned in that subsection; and (b) in the same capacity as that in which he made and delivered the return, unless one of the two conditions mentioned below is fulfilled. (4) The first condition is that the situation mentioned in subsection (1) above was brought about carelessly…by the taxpayer or a person acting on his behalf. (5) The second condition is that at the time when an officer of the Board (a) ceased to be entitled to give notice of his intention to enquire into the taxpayer's return under section 8…of this Act in respect of the relevant year of assessment; … the officer could not have been reasonably expected, on the basis of the information made available to him before that time, to be aware of the situation mentioned in subsection (1) above….” (a) that an amount of income tax or capital gains tax ought to have been assessed but has not been assessed… (a) in respect of the year of assessment mentioned in that subsection; and (b) in the same capacity as that in which he made and delivered the return, (a) ceased to be entitled to give notice of his intention to enquire into the taxpayer's return under section 8…of this Act in respect of the relevant year of assessment; … the officer could not have been reasonably expected, on the basis of the information made available to him before that time, to be aware of the situation mentioned in subsection (1) above….”
“Subject to the following provisions of this Act, and to any other provisions of the Taxes Acts allowing a longer period in any particular class of case, an assessment to income tax or capital gains tax may be made at any time not more than 4 years after the end of the year of assessment to which it relates.”
“The tax non-compliance involves an offshore matter’ if the potential loss of revenue is charged on or by reference to (a) income arising from a source in a territory outside the UK, (b) assets situated or held in a territory outside the UK, (c) activities carried on wholly or mainly in a territory outside the UK, or (d) anything having effect as if it were income, assets or activities of a kind described above.”
“(1) An assessment on a person in a case involving a loss of income tax or capital gains tax brought about carelessly by the person may be made at any time not more than 6 years after the end of the year of assessment to which it relates, (subject to subsection (1A) and any other provision of the Taxes Acts allowing a longer period). (1A) … (1B) In subsections (1) and (1A), references to a loss brought about by the person who is the subject of the assessment include a loss brought about by another person acting on behalf of that person.”
“For the purposes of this Act a loss of tax or a situation is brought about carelessly by a person if the person fails to take reasonable care to avoid bringing about that loss or situation.”
“The reasonable care which should be taken by a taxpayer is assessed by reference to a prudent and reasonable taxpayer in the position of the taxpayer in question.”
“…whether the taxpayer and those acting on his behalf took reasonable care to avoid creating the insufficiency in the assessment.”
“When the question is asked in that way, the answer becomes clear. The duty of the taxpayer is to take reasonable care to avoid bringing about an insufficiency and if he does not do so then the insufficiency is brought about carelessly. Mr Atherton could readily have avoided the insufficiency by not using box 20 in the way that he did. Although he wished to use box 20 in that way, to try to 'force' a year 2 loss into his assessment for year 1, he was under a duty to take reasonable steps to avoid the consequences of doing so. Despite his objective, he was bound not to use box 20 in that way. He could reasonably have avoided the insufficiency by confining himself to a standalone claim for relief using box 3.”
“advised by an adviser who was not someone 'acting on his behalf' to make use of box 20 in the way that Mr Atherton did, and if reliance on the advice given was reasonable in the circumstances, the taxpayer may well then not have been in breach of his duty to take reasonable care to avoid bringing about an insufficiency.”
“I find that Mr Wightman has not discharged the burden of showing, as he must since it is his reasonable belief that is in question, that he actually did receive advice that the Falken 1 loan was not a scheme chargeable payment from PPCL…I find that if he had applied such a critical mind to the situation, he would have challenged the validity of the loan and sought clarification from PPCL, but he did not (or at least has not discharged the burden of showing that he did).”
“[The FTT] did not take into account the fact that s36 of TMA is concerned with the question of whether a failure to take reasonable care causes a loss of tax. The FTT identified the failure to obtain advice as a careless omission. However, it did not go on to consider what would have happened if BFL had asked PPCL if the Falken 1 loan qualified. That was a relevant consideration because, if PPCL would have replied that it believed the documentation it had drafted would be effective, that might well have demonstrated that BFL’s carelessness did not cause the loss of tax.”
“In our judgment, given the FTT’s finding as to the background to PPCL’s appointment, it is reasonable to infer that, if PPCL had been asked whether the documentation they were producing would produce the desired result, they would have given that confirmation.”
“A person resides in more than one country, it is considered that they acquire a domicile of choice in country A if and only if: (1) country A is their chief residence; and (2) their intention is permanently to reside in country A as their chief residence.”
“With regard to para 43, placing the burden upon HMRC would accord with the long-established general rule, before self-assessment, that the Revenue had to establish fraud or wilful default in order to make an assessment outside the normal six year time limit: see for example Hudson v Humbles (Inspector of Taxes) (1965) 42 TC 380 at 384 and Brady (Inspector of Taxes) v Group Lotus Car Companies plc[1987] STC 635 at 639, 60 TC 359 at 386 per Dillon LJ.”