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

Ms Shaw relied on the reference in §12 of the Commentary to the relevant residence being where the taxpayer “owns or possesses” a home. She said that Mr McCabe was not in possession after April 2006, since he had removed himself and his possessions and had handed over the keys.

The reference to owning or possessing a home in the Commentary makes clear that legal ownership is not required. Beyond that, we do not consider that the concept of “possessing” a home adds anything to the remainder of the relevant passages of the Commentary, which refers to the permanent and continuous availability of the home for the use of the taxpayer. The FTT found that Deepdale was available to Mr McCabe to use, and that “he did use it throughout the Relevant Period” (§229(2)). Ms Shaw has not challenged that factual assessment on Edwards v Bairstow grounds.

We also find it entirely within the ability of the FTT to have disregarded what it saw as the “artificial step” of Mr McCabe handing the keys of Deepdale to Mrs McCabe (§229(4)). As the FTT observed at §214, it was required to adopt a purposive approach to the interpretation of the DTC: Bayfine UK v HMRC [2012] 1 WLR 1630, §50. The FTT considered that the reality of the situation was that, notwithstanding the handover of the keys, in practice the house was available to Mr McCabe during the Relevant Period. Ms Shaw’s submission that he did not have the “practical ability” to stay at Deepdale is therefore simply inconsistent with the FTT’s unchallenged findings of fact.