UT/2023/000012 - [2024] UKUT 00280 (TCC)

This is an appeal by the appellant Mr McCabe, brought with permission granted in part by the First-tier Tribunal (Tax Chamber) (FTT) and in part by the Upper Tribunal against the FTT decision released on 30 September 2022 (the Decision) dismissing the appeal by Mr McCabe against closure notices issued by the Commissioners for His Majesty’s Revenue & Customs (HMRC) under s. 28A(1) and (2) of the Taxes Management Act 1970 in relation to tax years 2006/7 and 2007/8 (together, the Relevant Period).

The closure notices amended Mr McCabe’s self-assessment tax returns for the Relevant Period, by charging him to income tax and capital gains tax on the basis that he was resident for tax purposes in the UK.

Mr McCabe’s case is that the FTT erred in law in applying both the common law test of residence and the “tie breaker” provisions of the 1987 UK/Belgium Double Tax Convention, as amended and in force during the Relevant Period (the DTC). In his submission, the FTT should have found that Mr McCabe ceased to be UK resident at common law on 4 April 2006, or that he was non-resident in the UK (and resident only in Belgium) throughout the Relevant Period under the DTC “tie-breaker” or, in the alternative, that he ceased to be UK resident at some point after 4 April 2006 but before 6 April under either the common law or the DTC.

Unless otherwise indicated, paragraph references in this judgment are references to the Decision of the FTT.