[2010] UKFTT 231 (TC)

TC00532

Appeal number: TC/2009/12212

Residence – taxpayer merchant seaman in full time employment abroad- whether his trips to the UK between voyages made him UK resident-whether he could rely on the fact that HMRC had treated him differently to other taxpayers in exactly the same position- whether he could rely on an extra statutory concession

FIRST-TIER TRIBUNAL
TAX 

	MR. D.FARQUHAR	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS	Respondents

TRIBUNAL:		S.M.G.RADFORD (TRIBUNAL JUDGE)							C.J.SMALL (MEMBER)				

Sitting in public at Holborn Bars, London EC1N 2NQ on 24 February 2010

Messrs. R. and M. Broadbent for the Appellant

Mr. A. Burke for the Respondents

© CROWN COPYRIGHT 2010

DECISION

1.	The Appellant appealed against HMRC’s decision that he was resident in the UK throughout the period 25 August 2003 to 19 September 2005 and consequently assessed for tax due in tax year 2003/2004 in the amount of £8,116.80, for tax year 2004/2005 in the amount of £16,146.90 and for tax year 2005/2006 in the amount of £14,975.85.
Background and facts 
2.	The Appellant claimed that he was non-resident for tax purposes in the relevant tax years. He worked abroad for a non-UK company Bergesons in Norway. He was paid from abroad and the money was remitted into a UK bank account without deduction as he was working in full time employment outside of the UK.
3.	Haven Tax Services Limited (“HTSL”), the Appellant’s agents, originally submitted a claim on his behalf for the Seafarers Earnings Deduction (“SED”) but the qualification for this is that the taxpayer is working on a vessel which is capable of moving under its own steam. The Appellant however was working on an FP80 which is a floating storage platform which cannot move and so was not eligible for this deduction and the claim was withdrawn.
4.	As an alternative it was claimed on the Appellant’s behalf that he was non-UK resident for tax purposes for the period 25 August 2003 to 19 September 2005.
5.	Previous to this the Appellant was also working for Bergesons but as at that time he frequently came back to the UK he submitted his tax returns as a UK resident and his tax affairs were dealt with at HMRC Centre 1 office. Once this PAYE employment ceased the Appellant went to college. He then returned to work for Bergesons but this time was working abroad and allegedly this was when the period of non-UK residence began. His tax returns however continued to be sent to the Centre 1 office.            
6.	The Appellant at this time now qualified as a Merchant Navy seafarer and IR20 as produced to the Tribunal and which was in force at the relevant time showed at page 12 that HMRC South Wales was the relevant office for the Merchant Navy seafarers.
7.	HTSL dealt solely with marine workers and seamen and had always previously dealt on their behalf with HMRC South Wales. They had dealt with the seafarers claims for some 30 years. Their method of calculating the average days spent in the UK, as agreed with South Wales, was to calculate those days from the first day out of the UK to a date beyond 5 April. HTSL confirmed that all claims submitted by them to HMRC South Wales office had consistently been agreed on the basis that they had used to calculate the Appellant’s eligibility for non-UK resident status.
8.	HTSL produced to the Tribunal details of a number claims made to HMRC South Wales on behalf of other of their clients who were in exactly the same position as the Appellant which confirmed this.
9.	The Appellant commenced his full time employment abroad on 25 August 2003 and returned on 19 September 2005. HTSL calculated that on the basis used by South Wales the average days spent in the UK during the period in question were 87. From 12 October 2004 to 19 September 2005, a period of 343 days, no visits were made to the UK when the claim ended. HTSL calculated this average by taking the sum of the total number of days in the period which was 757 and dividing it by 182, the number of days which he was in the UK, and then multiplying it by 365. 182 divided by 757 and multiplied by 365 gave an average of 87.75 days per year which was not more than the average of 91 days per year which according to IR20 Para 2.2 was  allowed to those working overseas.
10.	Enquiries were opened into the Appellant’s tax returns for tax years 2003/2004 and 2004/2005 on 12 January 2006 under Section 9A Taxes Management Act 1970 (“TMA”). After some correspondence concerning the original claim for SED, HTSL informed HMRC that the claim should be for exemption under the non-UK residency rules as their client had spent a period of time outside the UK and that under HMRC rules non - residency claims actually took precedence over SED claims.
11.	HMRC did not agree with the method used to calculate the average period spent in the UK and considered that it amounted to 91 days or more.
12.	HTSL informed HMRC that the Appellant, as an individual leaving the UK to work full time abroad under a contract of employment with a foreign employer all of whose duties are performed outside the UK, should be treated as non-UK resident and non-UK ordinarily resident provided that the average days spent in the UK were less than 91 days over the period of absence to a maximum of four years and at least one whole tax year. 
13.	A 19A TMA notice was served on the Appellant requesting documents to evidence the Appellant’s contract of employment, duties, discharge book and visits to the UK. These were provided to HMRC and produced to the Tribunal.
14.	On 6 June 2007 an enquiry was opened into the Appellant’s tax return for tax year 2005/2006.
15.	HMRC sought guidance from their Charity, Assets and Residence (“CAR”) department. They requested further detailed information which was duly supplied. Having examined all the details CAR agreed with Centre 1 that the Appellant had been UK resident for the whole of the relevant periods.
16.	On 17 December 2007 in response to Centre 1’s letter of 30 November 2007 setting out CAR’s submissions, HTSL asked HMRC to consider a non-UK residency claim from 20 January 2004 to 19 September 2005. They claimed that using HMRC’s method of calculation as described in their letter and taking advantage of the split year concession this would work out to an average of 89 days for the period to 5 April 2005 and 64 days to 19 September 2005.
17.	The enquiry was closed on 1 October 2008 and the Appellant was assessed to extra tax on the basis that he was UK resident for the relevant periods.
18.	The Appellant appealed and sought postponement of the payment of the additional tax charged which was duly agreed on 3 November 2008.
The Law
19.  Section 334 of ICTA states:
“Residence of persons working abroad 
(1) Where— 
(a) a person works full-time in one or more of the following, that is to say, a trade, profession, vocation, office or employment; and 
(b) no part of the trade, profession or vocation is carried on in the United Kingdom and all the duties of the office or employment are performed outside the United Kingdom; 
the question whether he is resident in the United Kingdom shall be decided without regard to any place of abode maintained in the United Kingdom for his use.
(2) Where an office or employment is in substance one of which the duties fall in the year of assessment to be performed outside the United Kingdom there shall be treated for the purposes of this section as so performed any duties performed in the United Kingdom the performance of which is merely incidental to the performance of the other duties outside the United Kingdom.”
20.  Section 336 of ICTA states:
“Temporary residents in the United Kingdom 
(1) A person shall not be charged to income tax under Schedule D as a person residing in the United Kingdom, in respect of profits or gains received in respect of possessions or securities out of the United Kingdom, if— 
(a) he is in the United Kingdom for some temporary purpose only and not with any view or intent of establishing his residence there, and 
(b) he has not actually resided in the United Kingdom at one time or several times for a period equal in the whole to six months in any year of assessment, 
but if any such person resides in the United Kingdom for such a period he shall be so chargeable for that year.
(2) For the purposes of Cases I, II and III of Schedule E, a person who is in the United Kingdom for some temporary purpose only and not with the intention of establishing his residence there shall not be treated as resident in the United Kingdom if he has not in the aggregate spent at least six months in the United Kingdom in the year of assessment, but shall be treated as resident there if he has. “

21.  Extra Statutory Concession A11 states:
"A11. Residence in the United Kingdom: year of commencement or cessation of residence 

The Income and Corporation Taxes Acts make no provision for splitting tax years in relation to residence and an individual who is resident in the United Kingdom for any year of assessment is chargeable on the basis that he is resident for the whole year. 

But where an individual:
•	comes to the United Kingdom to take up permanent residence or to stay for at least two years, or
•	ceases to reside in the United Kingdom if he has left for permanent residence abroad,
liability to United Kingdom tax which is affected by residence is computed by reference to the period of his residence here during the year. It is a condition that the individual should satisfy the Board of Inland Revenue that prior to his arrival he was, or on his departure is, not ordinarily resident in the United Kingdom. The concession would not apply, for example, where an individual who had been ordinarily resident in the United Kingdom left for intended permanent residence abroad but returned to reside here before the end of the tax year following the tax year of departure. 

This concession is extended to the years of departure and return where, subject to certain conditions, an individual goes abroad for full time service under a contract of employment. These conditions are:
•	the individual’s absence from the United Kingdom and the employment itself both extend over a period covering a complete tax year, and
•	any interim visits to the United Kingdom during the period do not amount to
•	183 days or more in any tax year, or
•	an average of 91 days or more in a tax year (the average is taken over the period of absence up to a maximum of four years), and
•	for years up to and including 1992-93, all the duties of the employment are performed abroad or any duties the individual performs in the United Kingdom are incidental to duties abroad.
Where the concession applies and the tax year is split, Section 128 Finance Act 1995 (limit on income chargeable on non-residents: income tax) does not apply for the period for which an individual is treated as not resident. That Section only applies to complete years of non-residence."

22.   Extra Statutory Concession IR20 states:
“1.6 Split year treatment applies where

• you have been not ordinarily resident in the UK and you come to live here
permanently or to stay for at least two years. You are taxed as a resident only
from the date of your arrival; or

• you have been resident in the UK* and you leave to live abroad permanently or
for a period of at least three years, and on your departure are not ordinarily
resident in the UK. You are taxed as a resident only up to and including the date
of your departure; or

• you have been resident in the UK* and you leave to take up full-time employment
abroad, and you meet certain conditions (see paragraphs 2.2 -2.3). You are taxed as a resident only up to and including the date of your departure (and from thedate when you return to the UK).

2 Leaving the UK

Short absences
2.1 You are resident and ordinarily resident in the UK if you usually live in this country and only go abroad for short periods - for example, on holiday or on business trips.

Working abroad
2.2 If you leave the UK to work full-time abroad under a contract of employment, you are treated as not resident and not ordinarily resident if you meet all the following conditions

•	your absence from the UK and your employment abroad both last for at least a
whole tax year
•	during your absence any visits you make to the UK total less than 183 days in any tax year, and
- average less than 91 days a tax year. (The average is taken over the period
of absence up to a maximum of four years - see paragraph 2.10. Any days
spent in the UK because of exceptional circumstances beyond your control,
for example the illness of yourself or a member of your immediate family, are
not normally counted for this purpose.)

2.3 If you meet all the conditions in paragraph 2.2, you are treated as not resident and not ordinarily resident in the UK from the day after you leave the UK to the day before you return to the UK at the end of your employment abroad. You are treated as coming to the UK permanently on the day you return from your employment abroad and as resident and ordinarily resident from that date.
If there is a break in full-time employment, or some other change in your circumstances during the period you are overseas, we would have to review the position to decide whether you still meet the conditions in paragraph 2.2. If at the end of one employment you returned temporarily to the UK, planning to go abroad again after a very short stay in this country, we may review your residence status in the light of all the circumstances of your employment abroad and your return to the UK.
If you do not meet all the conditions in paragraph 2.2, you remain resident and ordinarily resident unless paragraphs 2.8 - 2.9 apply to you. Special rules apply to employees of the European Community (see paragraph 2.14).

2.10 If it is necessary to calculate your annual average visits to the UK, the method is as follows:

Total visits to the UK (in days) x 365 = annual average visits
Total period since leaving (in days)
For this purpose, days spent in the UK in the tax year before the date of your original
departure are excluded.
Suppose, for example, you leave the UK on 5 October 2003. The first review of the
average of your visits is made after 5 April 2005, and takes account of your visits
between those two dates. If you visited the UK for 30 days between 6 October 2003 and 5 April 2004 and for 50 days in 2004-2005, the annual average is

30 + 50 x 365 = 80 x 365 = 53.38 days
182 + 365              547

If you continue to remain outside the UK, the annual average is calculated as follows in 
reviews after 5 April in subsequent years

•	after 5 April 2006 - include visits from 5 October 2003 to 5 April 2006
•	after 5 April 2007 - include visits from 5 October 2003 to 5 April 2007
•	after 5 April 2008 - include visits from 6 April 2004 to 5 April 2008.

After the third review the year of departure is dropped from the calculation. At each
subsequent review the oldest year is dropped, so that there is a rolling period of four
years being reviewed.

However, if during your absence the pattern of your visits varied substantially year by year, it might be appropriate to look at the absence as being made up of separate periods for the purpose of calculating average visits. This might be necessary if, for example, a shift in the pattern of your visits suggested a change of circumstances, which altered how we viewed your residence status.”

Appellant’s submissions
23.  HTSL submitted that in calculating the Appellant’s claim for non-UK residence during the period in question they had complied with HMRC’s South Wales working practice which had been used for some 30 years.  HMRC’s South Wales office was stipulated in IR 20 as the specialist tax office of HMRC which dealt with the marine workers. South Wales working practice was to calculate the days to the earliest date after 5 April when the taxpayer returned to the UK, whereas CAR had calculated the average for each tax year separately.
24.  The claim for non-UK residence was not sought for the Appellant when he first started working for Bergesons because he returned to the UK too often but as soon as he started doing the longer spells abroad they believed that he had a valid claim.
25.  HTSL emphasised that the papers produced to the Tribunal showed quite clearly that HMRC South Wales had consistently agreed and were still agreeing, all the non-UK resident claims, which were exactly the same as the Appellant’s, on the basis submitted.
26. HTSL contended that if the date of first leaving the UK was changed to 20 January 2004 by ignoring the Appellant’s first period offshore then by using the split year concession he would qualify for the non-UK status but HMRC had refused to let them change the start date.
27.	HTSL submitted that the Appellant should be treated as non-UK resident for tax purposes and by Extra Statutory Concession A11 (“ESC11”) should only be taxed up to and including the date of departure and from the date of return to the UK and that under Section 335 of the Income and Taxes Act 1988(“ICTA”) the residence of the taxpayer is determined without considering any place of abode maintained for his use in the UK.
28.   The Appellant’s had a legitimate expectation that he would be treated exactly the same way as other tax payers in his position.
29.  In conclusion they submitted that if only they had changed the Appellant’s tax office to HMRC South Wales before submitting his claim for non-UK residence, the claim would have been successful and this did not seem fair.
HMRC’s submissions
30.  Mr Burke for HMRC submitted that HTSL, in arguing their case for the Appellant being treated as non-UK resident for the relevant period, relied solely on Section 335 of ICTA and the previous cases they had dealt with on behalf of their other seafarer clients where non-UK residence had been established but each case had to be dealt with on its own merits.
31.  In the alternative HTSL contended that ESC A11 should apply to the Appellant but Mr Burke submitted that the Tribunal were unable to consider whether this should apply.
32.  In the case of Privet v Inland Revenue [2001] UKSPC00279 it was stated at paragraphs 9 and 10:
Be that as it may, I am satisfied that Mrs McAuley has correctly identified the real question in this case in submitting that this Tribunal has no power to review the Inspector’s decision not to admit the claims on a concessionary basis. Sitting as an appeal Commissioner (and not as a High Court Judge hearing an application for judicial review), I would be of the clear opinion that that submission was correct, even if there were no authority. In support of her submission, Mrs McAuley cited the fairly recent (1999) case of Steibelt v  Paling in which Sir Richard Scott V -C held that appeal Commissioners had no power to review the exercise of a discretion given by statute to the Board. In that case the discretion was explicit but clearly the principle applies equally (perhaps with even greater force) to a case where the discretion is derived merely from "care and management" and the Inspector has declined to disregard the clear words of the statute, as a concession.
10. I cannot therefore help Mr Privet ; and if I really have any jurisdiction in the matter at all (which is perhaps doubtful), I can only dismiss this appeal.

33.  In Steinbelt v Paling 71TC 376 Sir Richard Scott stated that it was not open to the General Commissioners to sit in judgement on the Revenue’s decision and themselves exercise discretion or to substitute their view for the Revenue’s view on the question whether the requirements of extra statutory concession D24 had been met.

34.  HMRC submitted that looking at each tax year the Appellant visited the UK for 85 days in 2003/2004 and 97 days in 2004/2005, a total of 182 days. The denominator of the equation for the calculation as set out in IR20 above at paragraph 2.10 is the period from 25 August 2003 to 5 April 2004 which is 225 days plus 365 days of 2004/2005, a total of 590 days. Dividing 182 by 590 equals 0.3 which multiplied by 365 produces an average of 118 (on checking this in fact produces an average of 110) which is in excess of the 91 days which would qualify the Appellant for non-UK residence in those years. 

35. In the absence of any statutory provision allowing the year to be split a taxpayer who is resident in the UK for part of a tax year is chargeable to income tax on the basis of being UK resident for the whole of that year.

36. ESC A11 introduces the concept of splitting a tax year into resident and non- resident parts but it is not a concept of which the Tribunal can take account as it is a concession and a departure from a strict legal basis.

37. HMRC claimed that the Appellant remained ordinarily resident in the UK because he kept a home here and had no home elsewhere. In accordance with the cases of Levene v CIR  13TC486 and Re Young (1875) (1TC 57) his absences were temporary absences with his home remaining in the UK.

38.  Although HTSL relied on Section 335 of ICTA, HMRC contended that all this section achieved was to stipulate that when considering the question of whether a person in full time employment outside the UK was resident in the UK, the availability of a place of abode in the UK should be ignored.

39.  HMRC concluded by contending that under the practices outlined in IR20, the Appellant remained resident in the UK for tax years 2003/2004 and 2004/2005. Since HTSL required that the matter be reviewed by the Tribunal it must be done by reference to the statute and case law.

40.  Split years claims in 2003/2004 could not be considered because as a question of fact he was resident during part of each year and a tax year could not be split.

41.  Mr Burke for HMRC cited Express Agency v HMRC which was a recent decision from the Tribunal in which the Judge Nicholas Aleksander said:

“The Appellant is correct that HMRC should normally treat taxpayers in identical circumstances in the same way. This is reflected in paragraph 4 of their Charter, which states that they will treat taxpayers "even handedly". However, I cannot treat HMRC's decision in the other case mentioned by the Appellant - of which I have only outline details from the Appellant – as justifying the late paper filing in this case. First, I have been given no evidence to demonstrate that the circumstances relating to the bookkeeper's other client are in fact identical. I do not know if there may be differences between the two cases which justify the different treatment (for example, was the other client told by HMRC that they would be able to file electronically using HMRC's software - notwithstanding the statements to the contrary on the website and in the leaflets)?  Secondly, if the two cases are on all fours, HMRC were wrong in allowing the other taxpayer to file a paper return after 31 October 2008 without incurring a surcharge. I cannot allow that "wrong" to justify a further "wrong" in this - and possibly other - appeals.  Any complaint the Appellant may have about HMRC's conduct may be better directed to the Revenue Adjudicator who can consider issues of maladministration – which is beyond the remit of this Tribunal.”

Mr Burke submitted that allowing the Appellant’s claim would be allowing a “wrong” to justify a further “wrong”.

42.  In 2005/2006 under common law and as a question of fact the Appellant was resident in the UK and was taxable on his earnings from employment wherever they arose.

43.  Under the provisions of Section 334 ICTA the Appellant’s absences were for the purpose only of occasional absence abroad and therefore the Appellant should be taxes as a person actually residing in the UK.

Findings

44.  In Express Agency v HMRC Judge Aleksander said that:

“The Appellant is correct that HMRC should normally treat taxpayers in identical circumstances in the same way. This is reflected in paragraph 4 of their Charter, which states that they will treat taxpayers "even handedly". 

Although he found against the taxpayer in this case this was for a different reason and not because of the different treatment of the taxpayers. He found that the cases referred to had been dealt with wrongly by HMRC and he could not allow a “wrong” to justify “another wrong”. We find that in this matter the treatment of taxpayers in identical situations to the Appellant by South Wales had been consistent over a period of some 30 years and still continued and the Appellant had a legitimate expectation that he could rely on the same treatment. 

45. The decisions of the Special Commissioners and the High Court in the case of Gaines-Cooper v Revenue and Customs Commissioners were produced to the Tribunal. However when this case was heard in the Court of Appeal  Lord Moses said at paragraph 3 when referring to the status and interpretation of IR20:
“It concerns the public law obligations imposed on the Revenue, once it has chosen to give guidance to taxpayers as to how it will approach questions relating to their residence for the purposes of taxation”.
And at paragraph 4:
	“All the more important, then, that guidance should be given on which taxpayers could rely”
and at paragraph 11:
	“The Revenue ought to have appreciated, much earlier, that these applications did raise important issues as to the effect of the guidance in IR20, and that their interpretation and application of the guidance had aroused serious concerns in the minds of serious practitioners, which the public interest required should either be allayed or confirmed, whatever the Revenue’s optimism as to the outcome.”
“Nor, I suspect, was the process intended to afford an opportunity to a public body, such as the Revenue, to resist full consideration of matters of great importance not just to the taxpayer but to the Revenue itself.”
46.  In paragraph 13 referring to the case of R v IRC ex p MFK Underwriting Agents Ltd he quoted the findings of Bingham LJ and Judge J who decided that the Revenue’s discretion was not limited to a decision as to the best and most economical method of collection:
“No doubt a statement formally published by the Inland Revenue to the world might safely be regarded as binding, subject to its terms, in any case falling clearly within them” (per Bingham LJ 1569C).
But the Court recognised that the Revenue could be bound, through the medium of judicial review, to honour statements made to the public as to how it would treat a taxpayer in particular, defined circumstances”.
47.  He referred (at paragraph 18) to the case of Al Fayed v the Advocate General for Scotland in which it was said :
But the guidance, in IR20, was plainly within the Revenue’s powers of providing statements of practice and identifying how it proposed to deal with the residential status of taxpayers in particular circumstances.  By doing so it gave some comfort (the extent of which is in dispute) to taxpayers on which they were entitled to rely.  It assisted co-operation and, thereby, the collection of tax.
And at paragraph 25, referring to the day-counting tests at paragraph 2.2 and 2.3 of IR20, he said:
The Revenue chose to use this language “you are treated as not resident and not ordinarily resident if you meet all the following conditions”.  The Revenue has used similar language in relation to the guidance on leaving permanently or indefinitely (2.7-2.9, cited [36]), for example at 2.8, “If you have left the UK permanently or for at least three years, you will be treated as not resident and not ordinarily resident”.  This is the language of assurance, which the Revenue, in the interests of fair dealing, has bound itself to honour.
48.  At paragraph 59 Lord Moses said:
“There is every reason why the obligation of fair dealing in relation to a particular taxpayer, identified in Unilever, should be imposed on the Revenue in the case of settled practices applied to  taxpayers at large (see Bingham LJ in MFK 1569C,cited at [13]).”
49. The Tribunal found that the Appellant had produced evidence to show that he had not been treated in the same way as other taxpayers in exactly the same position as him. Whether this point can be taken by this Tribunal, and whether it should instead be raised at the High Court by way of judicial review, is due to be considered by the Tribunal in another case but we wish to record that on the facts provided to us, we would have found that the Appellant had a legitimate expectation that he be treated as the other taxpayers in his position. We would suggest that the Appellant consider referring his case to the Revenue Adjudicator.
50. The Tribunal found that whilst the recent dicta by Lord Moses in the Court of Appeal in the case of Gaines Cooper with regards to IR20 might have helped the Appellant it was not possible to change his claim to non-UK residence starting from 20 January 2004 because as a fact his non-UK employment started on 25 September 2003. On this basis his average days in the UK were more than 91.	
51. The Tribunal found that even allowing for the split year treatment as set out in IR20 to apply the average days would still be required to average less than 91 days and unless the Appellant’s claim had legitimately started on 20 January 2004, the Appellant’s average as calculated in accordance with paragraph 2.2 and 2.10 of IR20 exceeded this.
52. The Tribunal found that the Appellant was UK resident for the years in question.
Decision
53. The Tribunal decided that the appeal should be dismissed.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.   The application must be received by this Tribunal not later than 56 days after this decision is sent to that party.  The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

TRIBUNAL JUDGE
RELEASE DATE: 20 May 2010

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