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

Ms Shaw said that the statement in §12 of the Commentary that “the individual must have arranged and retained [the home] for his permanent use” demonstrates that the focus must be on the acts of the taxpayer, such that if a taxpayer chooses to give up their permanent home in a jurisdiction, then that choice should be respected.

We agree with that as a matter of principle. Whether or not that is the case, however, must be determined on the basis of the facts before the court or tribunal, by reference to all of the relevant evidence.

The FTT’s conclusion was that, on the evidence before it, although Mr McCabe had removed his personal belongings from Deepdale, the house did in fact remain available to him as his permanent home in the UK during the Relevant Period. The example at §13 of the Commentary of an individual choosing to rent their home to a third party, such that they no longer had the possibility of staying there, was relied on by Ms Shaw but in fact supports the FTT’s conclusion (as the FTT found at §230): unlike that example, the FTT found that Mr McCabe was in fact able to stay at Deepdale whenever he wanted, and for as long as he wanted.

This was not, therefore, a case where on the facts Mr McCabe had given up his permanent home in the UK. Not only did the home remain available to him, but (as we have already noted) the FTT found that he did in fact use it throughout the Relevant Period.