Gaines Cooper - Judical Review at the Court of Appeal

We have seen some sensationalist press comment about how this decision spells doom and gloom for the likes of Philip Green and the "Monaco millionaires", including Lewis Hamilton and others. That seems ill-informed to us.

The JR was essentially about whether HMRC had changed their policy and reneged on assurances given in IR20. The answer was "no" and "no". It is clear that any argument that Mr Gaines-Cooper might have had on the actual facts was scuppered by the earlier Special Commissioners decision which had already found many facts in his case, (albeit some in the context of his domicile which were nevertheless considered to be relevant to whether or not he had sufficiently severed his ties with the UK).

In a nutshell, it is not necessary to sever your ties if you are going abroad for full-time employment for a full tax year, but otherwise it is necessary to demonstrate a clean break in the pattern of life. It has always been advisable in marginal cases to stay out of the UK throughout the year in which non residence is hoped for, to bring in Reid v Clark considerations (only mentioned very briefly in passing in Gaines Cooper). Otherwise there is and has always been a risk of challenge on the grounds that you have not in fact "left the UK". “Left the UK” requires leaving to be for a settled purpose, amounting to a clean break and the evidence required is not limited to ties with a new country but includes weighing up ongoing ties with the UK, unless the terms of para 2.2 of IR20 (conditions of non-residency) were complied with.

Days in the UK (the 90-day rule) are not relevant in deciding whether or not someone has become non resident but only to establish that someone who has become non resident has not re-established residence. That was always the case. Mr Gaines Cooper was held not to have become non resident.

One helpful side-effect of the Judgment of Moses LJ is that he makes it clear (if that wasn't already the case) that international commuters that satisfied the terms of para 2.2 of IR20 did not need to sever their ties and should usually have been able to become NR.

However the case leaves open the difficult question of whether or not someone can become NR having left the UK, for full-time employment according to para 2.2 when that employment is prematurely terminated, without "severing their ties". It seems clear that Moses LJ thinks not and it would be unwise to advise otherwise without a caveat by reference to this judgment. Our view is that on the facts it may be possible to show that such a person has “left the UK”, but an "international commuter" would usually have no chance of doing so.

IR20 is now superseded by HMRC6. Most of the principles are unchanged although HMRC6 makes it clearer that lifestyle circumstances may need to be taken into account. The judgment makes it clear that you can rely on these publications -to the extent that they are themselves clear!

Please contact us if you require any further information.