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

Ms Shaw said that Mr McCabe had divested himself of his legal right to stay at Deepdale by transferring the property to his wife’s sole name in 2004. He therefore did not have any rights of ownership of Deepdale. The fact that the property was owned by Mrs McCabe was not, she said, sufficient for the purposes of Article 4(2)(a) of the DTC, since the Commentary refers to the taxpayer having retained the home for “his”use. Accordingly, she said, the focus should have been on the question of whether Deepdale was Mr McCabe’s home, and not whether it was the home of his wife.

We agree that the question to be answered under Article 4(2)(a) of the DTC is whether the taxpayer has a permanent home available to them in the State in question, and not whether their spouse has such a home. But the DTC does not require legal ownership of the property. It asks instead whether there is a permanent home “available” to the individual. The term “available” is not defined in the DTC, or the Commentary. (We address below the Commentary’s reference to a residence as the place where the taxpayer “owns or possesses” a home.) Guidance as to how treaties should be interpreted is also, as recognised at §16 of Fowler, found in Article 31 of the 1969 Vienna Convention on the Law of Treaties, of which the UK and Belgium are both signatories. Article 31 includes the following provisions:

“1.

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

…

4.

A special meaning shall be given to a term if it is established that the parties so intended.”

There was no suggestion before us that the term “available” was intended to have a special meaning in the DTC. We fall back, therefore, on the ordinary usage of the term, which we consider means in its context no more than a residence being “able to be used” by a person or “at the disposal of” a person (as per the definition in the Oxford English Dictionary). That is a factual concept which can readily be applied by a court or tribunal, and was applied by the FTT in the present case. The FTT properly did not focus on the question of legal rights, nor did it assume that Deepdale was Mr McCabe’s home simply because his wife owned the property and had her home there. Rather, the FTT based its conclusion on a factual finding that Mr McCabe could have stayed at Deepdale whenever he wanted to, Mrs McCabe having acknowledged that she would have given permission if asked. That was a conclusion that the FTT was entitled to reach on the evidence before it.