UK residence not broken despite taxpayer living abroad for many years

30 November 2012 | Guy Abbiss

A UK taxpayer living principally in Spain was found to have maintained UK residence and closer links to the UK than to Spain.

Background

The taxpayer spent at least 183 days in Spain in all but one of the tax years 2000/01 to 2006/07 inclusive. This meant that she did not spend 183 days in the UK in those years (the sole statutory test for UK residence currently). However, it was determined by the First-tier Tribunal that she had maintained sufficient links to the UK that she had not broken UK residence. One of the main factors in reaching this decision was that her husband remained resident in the UK.

It was accepted that she was also resident in Spain under Spanish domestic law. The double tax agreement between the two countries provides a “tie-break” in cases of dual residence such that an individual will be regarded as resident in one country only. On application of the treaty provisions, the Tribunal found that the taxpayer’s centre of vital interests (economic and personal ties) was in the UK and not Spain. As such, she was resident in the UK and not resident in Spain with the result that she was liable to capital gains tax on gains she realised following the disposal of shares transferred to her by her husband after she had moved to Spain.

Commentary

This is another example of how difficult it is for UK nationals to break UK residency. This case also demonstrates that establishing residency in another jurisdiction is not necessarily sufficient.

Resources

Decision of the First Tier Tribunal (Tax) – Release date: 22 August 2012

Lynette Dawn Yates v HMRC [2012] UKFTT 568 (TC)

For further information or to discuss the issues raised, please contact John Mooney or Bina Gayadien on +44 (0)20 3051 5711.

Disclaimer

Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this article. For further legal information click here.

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Disclaimer

Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this article. For further legal information click here.

The author

Guy Abbiss
Partner
Employment Law
Compensation and Benefits
International Assignments
D: +44 (0) 203 051 5714
T: +44 (0) 203 051 5711
F: +44 (0) 203 051 5712

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