Working full time abroad means proving just that. In Paul Daniel v HMRC TC 03312, an investment banker failed to provide sufficient evidence to show that he was full-time working  abroad and non-resident for CGT purposes.

The onus for proving that work is full time work abroad is on the taxpayer.

  • Mr Daniel divided his time between addresses in London and Belgium (where he could live and where his office was located), and a holiday home near St Tropez (which also had an office).
  • Most of the evidence produced was oral evidence given during the hearing.
  • His evidence was not backed up by any written document (e.g. emails, records of phone calls, timesheets, copies of presentations made to potential customers, etc.).
  • The tribunal was presented with detailed flight times, but only for 8 of the many flights Mr Daniels had taken.
  • Limited mobile phone records were provided, but these only covered some periods, and no evidence was provided about who had made these calls and why. • The computers he used had all be disposed of or lost.
  • No correspondence with his tax advisers was provided (but HMRC managed to get three lever arch files from one of them).

Under the old residence rules in IR20, there was no definition of the average number of hours that have to be worked each week for work to be full time. Rather, this varies depending on the nature of the employment, the work practice in the relevant country and industry practice.

As a result of the absence of concrete evidence, the FTT had to infer from other factors whether Mr Daniel was working full time abroad. Unfortunately for him, it held that this was not credible and dismissed his appeal; and commented that he had failed to follow the tax advice provided by this tax advisers.

Link: Paul Daniel v HMRC [2014] TC 03312

Comment

This case illustrates the absolute necessity for keeping written and timely records to support such a claim, and also for listening and following the advice of tax advisors. Following the introduction of the UK's new Statutory Residence test taxpayers are advised to maintain a day counting calender, see Statutory Residence Test Day Counting Toolkit

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