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

The FTT set out the evidence before it as to the number of days, part days and nights spent by Mr McCabe in the UK during the Relevant Period at §§96–100, followed by a detailed description of Mr McCabe’s travel arrangements during the Relevant Period at §§104–123. The FTT’s subsequent discussion of these points was at §§191–195. The FTT emphasised that it did not need to rely on only one set of data, nor did it need to confine its analysis to the question of where Mr McCabe slept during that time: §191. It went on to find that:

Ms Shaw took issue with those conclusions on the basis that they gave insufficient weight to the question of where Mr McCabe slept at night. She also objected that the FTT had not weighted the days by comparison with part days in its count of days.

As a preliminary point, as we have already noted, the FTT concluded at §205 that the amount of time that Mr McCabe was physically present in the UK, compared with the extent of his overseas visits, were significant factors against a conclusion that Mr McCabe remained UK resident after 4 April 2006, albeit that this was outweighed by the other factors listed at §207. Ms Shaw’s submission on this point was therefore ultimately a contention that the FTT should have given more weight than it did to its conclusions regarding the brevity of Mr McCabe’s visits to the UK and the number of nights spent in the UK. The weight to be given to the different factors identified was, however, fundamentally a matter for the FTT, and as we have noted Ms Shaw did not advance an Edwards v Bairstow challenge to the FTT’s factual evaluation.

In any event, we do not consider that the FTT’s approach discloses any error of law. The FTT’s evaluation of the time spent by Mr McCabe in the UK was part of its overall assessment of whether there was a substantial loosening of Mr McCabe’s ties to the UK. As we have set out above, the question of where Mr McCabe slept at night was a relevant factor in that assessment, and was rightly taken into account by the FTT as a matter of some significance, but the FTT was not required to regard that as overriding all other considerations. Rather, the FTT was required to have regard to all the relevant circumstances: see Glyn §41, and Gaines-Cooper, §63. In particular, in this case, the FTT noted that the number of nights spent in the UK did not alonegive an accurate picture of the time spent by Mr McCabe in the UK, given the fact that Mr McCabe’s visits to the UK frequently did not involve an overnight stay. That was a finding that the FTT was entitled to make on the evidence before it.

The assessment of a taxpayer’s presence in a particular place is, moreover, not a purely mathematical exercise, still less one that must be carried out according to a specific formula. The FTT therefore correctly considered that it was not bound to adopt a single metric for the evaluation of Mr McCabe’s presence in the UK (§191). Rather, the FTT had regard to both parties’ schedules showing Mr McCabe’s presence in the UK, calculated on various different bases, as being helpful in seeking to illustrate his overall pattern of travel (§98). That approach was, in our judgment, unimpeachable.

Ms Shaw objected that it would not be appropriate to calculate days spent in the UK by simply aggregating days and part days, giving part days the same weight as full days. We agree that simply adding the number of whole days and part days together as a numerical exercise would not be a meaningful statistic on which to base a determination as to residence. That is, however, not what the FTT did. While §192 of the Decision referred to the days and part days on which Mr McCabe was present in the UK over the Relevant Period, that was a summary of the more detailed and granular evidence considered by the FTT in the earlier parts of its judgment. The FTT had already set out, among other things, not only the number of whole days spent in the UK but also several different representations of part days, based on quarter days (HMRC’s approach) and a thirds approach (Mr McCabe’s approach).

The FTT Decision must be read as a whole, and nothing in the conclusions at §192 suggested that the FTT was ignoring its earlier more granular analysis. On the contrary, it is clear that the FTT considered, in detail, the various different measures of presence in the UK that were submitted by the parties. The weight ultimately given to those measures of presence in the UK, as set against other factors connecting Mr McCabe to the UK, was a matter for the FTT in its evaluation of the facts.

We do not, therefore, consider that the FTT erred in its approach to the days and part days spent by Mr McCabe in the UK.