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

At §196 the FTT rejected Ms Shaw’s submission that the brevity of Mr McCabe’s visits meant that they lacked the quality of presence which was required to determine residence. In particular, it considered that Mr McCabe’s trips to the UK were busy and productive, and that where Mr McCabe was away from the UK for longer periods of time (with the exception of the first six months), this was generally not because he was in Brussels, but was rather because he was in Australia, La Manga or the Far East.

Ms Shaw made a number of submissions about this finding but did not, in our judgment, identify any error of law by the FTT. Her starting point was that in assessing the quality of Mr McCabe’s presence in the UK greater weight should have been placed on the visits to the UK which included overnight stays. We have already found that the FTT did not err in its understanding of the legal test. As to the weight given to overnight stays, that is a classic exercise of evaluation of the facts, which was a matter for the FTT.

Ms Shaw’s submissions effectively suggested that Mr McCabe’s visits to the UK should be disregarded if they did not involve overnight stays. We unhesitatingly reject that proposition. It is not consistent with the requirement to carry out a multifactorial assessment of all of the circumstances, as set out in the case-law which we have discussed above. Nor does it take account of the reality of modern travel options. A logical consequence of Ms Shaw’s position would be that if someone visited the UK every day but chose to return, say to Brussels or Paris overnight (which is eminently possible, as Mr McCabe’s travel schedule demonstrates), they could be taken to have had no UK presence at all. In Mr McCabe’s particular situation it would mean (as recognised by the FTT at §192(2)) that of the 98 visits he made to the UK during the Relevant Period, 53 of those visits would be entirely disregarded. That would not give an accurate or a balanced picture of his presence in and ongoing connection to the UK during that period.

A further submission was that greater weight should have been given to the fact that when Mr McCabe did stay in the UK, he did not do so at Deepdale. The FTT’s judgment acknowledged this to have been the case during the Relevant Period. As the FTT said at §186, however, residence in the UK does not require residence in a particular building in the UK. The fact that Mr McCabe slept in hotels, or at the houses of friends or his son Simon, whilst in the UK did not therefore preclude him from being UK resident.

There was, again, no error in that approach. In the Lysaght case, Viscount Sumner noted that the hotel where Mr Lysaght typically stayed during his visits to the UK was not much of a home to him, but that this was not conclusive, since:

“Property obviously is no conclusive test. Whether Mr Lysaght resides in his own or in a hired house in Ireland cannot have much to do with it, nor is a person precluded from being resident because he puts up at hotels, and not always the same hotel, and never for long together. … although setting up an establishment in this country, available for residence at any time throughout the year of charge, even though used by little, may be good ground for finding its master to be ‘resident’ here, it does not follow that keeping up an establishment abroad and none here is incompatible with being ‘resident here’ if there is other sufficient evidence of it.” (p. 528)

Ms Shaw also suggested that the FTT had left out of account the first six months of the Relevant Period, during which he did not return to the UK (save for a single day trip to watch a Sheffield United football match). That is in our view a misunderstanding of the Decision. The comments at §§194 and 196 did not indicate that the FTT was disregarding the first six months of the Relevant Period; rather, the FTT was simply acknowledging that during that period Mr McCabe was not (save for the one day trip) in the UK at all. That was a matter which was then expressly taken into account in the FTT’s assessment of the overall fact pattern, but the FTT found at §201(1) that this was not sufficient to render Mr McCabe non-resident:

“It is clear from the authorities that an absence from the UK of several months is not itself sufficient. The difficulty which Ms Shaw faces on the facts, and which I have concluded is not surmounted, is that during the six months from 4 April to 4 October 2006 (and leaving aside the return to the UK on 30 April 2006, which does not and should not dictate the conclusion), Mr McCabe retained some of his connections to the UK throughout whilst not physically present in the UK (eg attending board meetings of several of the UK companies, both in Brussels and Paris), and was continuing to hold meetings in relation to UK developments (eg Lumiere in Leeds). After six months, Mr McCabe returned to the UK and the pattern of his life continued, albeit with him spending time in Brussels as well as the UK, Spain and elsewhere. Mr McCabe’s physical absence from the UK was a consequence of the tax advice which he had received, and was treated by him as a hurdle to overcome. He did remain absent for the time advised, but when viewed in the context of all the surrounding facts which I have relied on above, but I am not satisfied that Mr McCabe had made a sufficient loosening of ties by this date.”

Ms Shaw’s next point was that Mr McCabe had a habitual abode in Belgium (as the FTT went on to find) and spent more time there than in any other country. That obviously does not, however, preclude a finding that Mr McCabe was also resident in the UK. It is not disputed that a person may have more than one country of residence: see §42 of Glyn.The fact that Mr McCabe was, as is common ground, resident in Belgium, and the FTT’s finding that he had his habitual abode there, is therefore not in any way inconsistent with a conclusion that he was also resident in the UK during the Relevant Period.

Finally, Ms Shaw took issue with the FTT’s reference to the fact that Mr McCabe’s return visits to the UK were “busy and productive”, on the grounds that he was busy and productive wherever he was. Again, we see this as a point which goes to the FTT’s evaluation of the facts that it found. In any event, we do not read the Decision as suggesting that the FTT is placing any significant weight on this point. Rather, the FTT was making the point as part of its rejection of Ms Shaw’s submission that the brevity of Mr McCabe’s visits to the UK meant that they did not have the necessary quality to be relevant in determining residence. The FTT was clearly right to reject that submission, and we note that Ms Shaw did not pursue that in this appeal (although she made similar points which we have rejected on the grounds set out above).

The FTT did not, therefore, err in its assessment of the quality of Mr McCabe’s presence in the UK.