Gaines-Cooper v Revenue and Customs

Acquisition of a domicile of choice requires both residence and an intention to reside permanently or indefinitely. Where a person has residences in more than one country, the court must determine which, if any, is the chief residence by examining the totality of the evidence. That inquiry is not confined to a snapshot of the alleged acquisition date. Later conduct may assist in determining the character of earlier residence, although its weight will diminish with time. An appeal on a question of law cannot become a general challenge to findings of fact or the weight given to evidence. The appellate court must identify a material legal error, lack of evidential support, or a conclusion which no properly directed tribunal could reasonably reach.

Mr Gaines-Cooper appealed against the Special Commissioners’ decision that he was domiciled in England and Wales during the tax years 1992/93 to 2003/04. He argued that he had abandoned his English domicile of origin and acquired a domicile of choice in the Seychelles in 1976.

The appeal was confined to questions of law. The principal issues were whether the Special Commissioners had misstated the legal test by considering later evidence when determining residence, whether they had wrongly treated family considerations as relevant to intention, and whether their factual conclusion was legally unsustainable.

1. Scope of appeal. The appeal was confined to questions of law. Applying Edwards v Bairstow [1956] AC 14 and Georgiou v Customs & Excise Commissioners [1996] STC 463, the court could intervene only for a legal misdirection, a material finding unsupported by evidence, or a conclusion which no properly instructed tribunal could reasonably reach. A general attack on the weight of the evidence was impermissible.
2. Domicile of choice. The governing principle, stated in Udny v Udny (1869) LR 1 HL 441, requires residence and an intention to continue residing indefinitely. A person may have only one domicile, and the domicile of origin is particularly adhesive.
3. Chief residence. Where the person has residences in more than one territory, residence means physical presence as an inhabitant and the court must determine which residence is chief. The inquiry concerns the quality and character of residence, not merely physical presence or a day count. Later conduct may be considered in determining the character of earlier residence. The court rejected a rigid distinction between later evidence relevant to intention and later evidence relevant to residence, relying on Bremer v Freeman (1857) 3 Moo PC 306, IRC v Duchess of Portland [1982] STC 149, Plummer v IRC [1987] STC 698 and Agulian v Cyganik [2006] EWCA Civ 129.
4. Intention and family. The necessary quality of intention is the same for a single person and a married person. It is permissible to consider what subsequently happened when the person acquired a spouse or family, although the person’s relatives’ intentions do not determine his own intention. The Special Commissioners’ formulation, drawn through IRC v Bullock [1976] STC 409, Winans v A-G [1904] AC 287 and Bell v Kennedy (1868) LR 1 HL Sc 311, did not disclose an error of law.
5. Application. The Special Commissioners were entitled to find that England remained the centre of gravity of Mr Gaines-Cooper’s life and that the Seychelles was not his chief residence. Their treatment of his evidence, the Seychelles witnesses, the plastics factory, the coup, Bois Noir and his English connections involved factual evaluation rather than legal error. The appeal was dismissed.

• High Court (Chancery Division): Mr Gaines-Cooper appealed on questions of law against the Special Commissioners’ decision that he was domiciled in England and Wales during the relevant tax years. The appeal was dismissed.