This edition’s Chartered Accountants Tax Case digest looks at a case in which the Court of Appeal overturned the decision of the Upper Tribunal (UT) and restored the previous decision of the First Tier Tribunal (FTT) in finding that the taxpayer was not UK tax resident during the tax year having spent a number of days in the UK due to exceptional circumstances beyond her control that prevented her from leaving.
The focus of the case was on the meaning of ‘exceptional circumstances’ in the UK Statutory Residence Test (SRT) with the Court noting in its decision that this needs to be applied to individual circumstance as a whole whilst also highlighting that such circumstances can include the reaction of a taxpayer to matters such as the illness of a close relative, and other moral obligations. Commentators are arguing that this decision essentially appears to loosen the ‘exceptional circumstances’ test. At present it is unclear whether HMRC will appeal to the Supreme Court.
The UK’s SRT is used to assess if an individual taxpayer is UK tax resident and took effect from 6 April 2013. This case is the first and only case to date in which the SRT has been the subject of an appeal through the UK court system.
Background
The case was an appeal by the taxpayer against the UT decision which held that the taxpayer was UK tax resident for the tax year ended 5 April 2016.
During 2015/16, the appellant taxpayer had received a large dividend but did not include it on her self-assessment return on the basis that it was not taxable in the UK because she was not UK tax resident in that tax year as she was tax resident in Ireland.
The concept of ‘days’ spent in the UK lies at the heart of the SRT. Ordinarily, every day when a person is present in the UK at midnight at the end of the day counts for the purposes of the test. However, certain exceptional days may not be counted.
Under her particular circumstances, the second automatic overseas test was relevant meaning that as she was not UK tax resident for any of the preceding three tax years prior to 2015/16, as long as she spent fewer than 46 days in the UK in 2015/16, she would not be UK tax resident.
Having spent 50 days in the UK during the tax year, the appellant relied on Schedule 45 para 22 (4) of Finance Act 2013 which provides that a day does not count as a day spent in the UK if a person would not be present in the UK at the end of the day but for exceptional circumstances beyond their control that prevent them from leaving the UK and they intend to leave as soon as those circumstances permit.
On two visits totalling six days in December 2015 and February 2016 she was present in the UK at the end of the day because she felt compelled to stay to help her sister who was suffering from alcoholism, was suicidal and was failing to look after her children. She therefore argued that she had only spent 44 days in the UK in 2015/16 and was not therefore UK tax resident.
HMRC argued that these reasons did not amount to exceptional circumstances, and that the appellant had not been prevented from leaving the UK. HMRC issued a closure notice amending her tax return to include the dividend as taxable income.
The appellant appealed to the FTT which allowed her appeal finding that although the need to care for the consequences of her sister’s alcoholism and depression did not, of itself, constitute exceptional circumstances, the fact that the sister had minor children, for whom the appellant also cared, did in their view change the position.
The FTT said that it was unnecessary for a legal obligation to care for the children to exist for there to be an exceptional circumstance and stated that moral obligations and obligations of conscience, including those arising by virtue of a close family relationship, can qualify as exceptional circumstances.
Finally, the FTT concluded that those obligations may be strong enough to prevent a taxpayer from leaving the UK.
HMRC appealed to the UT putting forward four grounds of appeal, all of which were accepted by the UT. The UT overturned the FTT decision finding that the circumstances of the two visits in question were not exceptional, and that the appellant was not prevented from leaving the UK on any of the days by exceptional circumstances. She was therefore UK tax resident in 2015/16 making the dividend taxable income in the UK.
The appellant appealed to the Court of Appeal on six grounds, including that the UT erred in law in its approach to the test as to whether the appellant was prevented from leaving the UK, and in holding that moral obligations cannot be or cannot be part of the exceptional circumstances.
Decision
At the heart of the taxpayer’s appeal was whether the appellant’s circumstances were exceptional and whether they prevented her from leaving the UK.
The Court held that what prevents someone from leaving the country is not limited to certain defined categories such as a legal obligation or physical impossibility, noting that the statutory example of exceptional circumstances in Schedule 45 para 22 (5) of Finance Act 2013 which refers to a ‘sudden or life-threatening illness or injury’ is not specifically limited to the injury or illness of the taxpayer themselves, or of someone for whom they have a legal duty to care.
A moral or societal obligation was suffice and in the Court’s view is likely to have also been intended by Parliament.
The Court held that the UT had taken too narrow a view of what could constitute an exceptional circumstance and ruled that the moral or societal obligation that the illness of a relative imposes on a taxpayer can form part of the overall circumstance. This should also be taken account of in considering whether the circumstances as a whole are considered exceptional.
The Court allowed the appellant’s appeal on all grounds and restored the decision of the FTT.
The full judgment is available at: https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/106?query=A+Taxpayer&court=ewca%2Fciv
LOADING...