Mr Coller’s family history is an interesting one. His father, John, was born in Austria but fled to the UK in 1938 to escape Nazi persecution. John later went on to serve in the British Army during the Second World War and subsequently established a successful business and lived in London. Jeremy’s mother, Sylvia, was born in Dublin and had a domicile of origin in Ireland before moving to London in 1954 and later marrying John. John and Sylvia continued to live in London at the time of Jeremy’s birth and during his childhood.
The case concerned appeals against closure notices for the tax years ended 5 April 2013 to 5 April 2016, issued to Jeremy on the basis that he was domiciled in England for those tax years. The FTT considered the domicile positions of Jeremy and his parents. The burden of proof lay with HMRC to prove that each party had acquired a domicile of choice in the UK.
The arguments
Mr Coller’s father - John
Presenting evidence from Sylvia Coller’s witness statement and biography, counsel for Jeremy claimed that John abandoned his Austrian domicile of origin in favour of a French domicile of choice. The FTT heard that it was his desire to live the remainder of his days in Juan-Les-Pins but was unable to do so as he died suddenly of a heart attack age 50, whilst Jeremy was still a minor. Counsel for Jeremy explained that his father’s decision to move to the UK was borne from necessity, given the Nazi invasion of Austria, rather than free choice. Consequently, counsel argued that his father never felt at home in England and his decision to reside, work, and socialise solely with expats in a Viennese enclave in North London, his love of Mediterranean life, and the fact that he was fluent in French was clear evidence that he had not acquired a domicile of choice in England. The FTT rejected this argument highlighting that evidence to support John Coller’s French domicile of choice stemmed virtually exclusively from his wife’s witness statement. Moreover, though it was accepted that John had an affinity for France, he only visited with his family during the summer months for a few weeks at a time and did not have a permanent home there. The FTT considered there was not a clear intention that John Coller wished to end his days in France, merely stating that this fell in to “pipe dream territory”. It was held that John acquired a UK domicile of choice prior to Jeremy’s birth and as such, Jeremy also had a UK domicile of origin.
Mr Coller’s mother - Sylvia
Similarly, the FTT rejected arguments that after John died, Jeremy’s mother maintained a domicile in Ireland, instead of her acquiring an English domicile of choice. Interestingly, in considering submissions that Sylvia wished to return to Ireland to live the rest of her days, the FTT found it “significant” that she never actually returned to live in Dublin and the FTT drew comparisons from the case of Musa where despite the appellant claiming to have had an intention to retire to Cyprus, it was of interest to the FTT to note that he had still not done this by the age of 74.
Mr Coller - Jeremy
At the heart of this case, Jeremy asserted that he had never given any serious thought to where he might end his days. He stated that his energies were focused on his business interests and family (a position that will no doubt resonate with many busy globally-mobile individuals) and he therefore could not have formed an intention to remain in the UK permanently or indefinitely. The FTT were sympathetic to this argument acknowledging that few couples, whilst they are raising a family and working hard actually discuss future plans. In presenting evidence to the FTT, Jeremy discussed his affinity with Israel, citing that his interest in the country, his significant donations to Tel Aviv University and his property investments in Tel Aviv which far exceed the value of any property he owns in the UK or rest of the world. However, when considered in the context of Jeremy’s wider circumstances (e.g. that he was born in the UK, educated here, established a successful business, brought up his family here and had not lived elsewhere) the FTT considered that this was not consistent with either an intention to settle in another country or with Jeremy’s assertion that he had not thought about where he might permanently settle.
Analysis of the judgment
It is well established that a person cannot and will not acquire a domicile of choice unless they have (i) physical presence in the territory concerned and (ii) and an intention to remain in that territory on a permanent or indefinite basis. The judgment does not focus on the fact that Mr Coller’s chief residence was located in the UK and that during the relevant period, he only had a home in the UK. Instead, consideration is given to the adhesive nature of a person’s domicile of origin and Mr Coller’s intention to remain in the UK permanently or indefinitely.
The terms “permanently” and “indefinitely” have specific meanings when it comes to the law of domicile and there is a wealth of case law regarding their interpretation. In this case, the FTT suggested that if a person resides in a country without any intention of leaving, they are likely to be settled in that country for domicile purposes. Other commentators may perhaps disagree with this interpretation of intention and argue that the position is more nuanced. However, this case affirms not only how important it is to consider the individual’s facts and circumstances but also the uncertainty that exists where an individual (i) asserts they do not have a positive intention to live in the UK indefinitely but (ii) is also unable to point to a “clearly foreseen and reasonably anticipated contingency” that would make them leave the UK in future. Where such cases involve evidence relating to deceased individuals their actual conduct, rather than written or oral statements, are likely to carry significant weight when determining their domicile status.
Written by Scarlett Underwood and Pritpal Virdee