IHTM13022 - Change of Domicile: Domicile of Choice
If your domicile is not, for example dependent ( IHTM13023) upon another person then you are free to change your current domicile. For this to happen you need to show that
- you are resident in the new country, and
- you intend to reside there permanently or for an unlimited time.
The first condition is factual and will exclude casual visitors,
e.g. as a traveller. The courts have described the quality of
residence to be “
bodily presence as an inhabitant”. It is not
a requirement that the taxpayer is resident in the UK for the
purposes of Income Tax.
The second condition will not be satisfied by residence that
is fixed in time, however long, or residence that is for a
particular purpose. In this respect any such limitation or
contingency to leave must be clearly expressed. Furthermore, there
must be a substantial possibility that it could happen.
So in one case the court accepted that an intention to leave
England should his wife predecease him was sufficient to establish
that the appellant had not adopted a domicile of choice in England
despite living here for many years. In another, an intention to
leave when unable to look after yourself in old age was held to be
too vague so the court was able to infer that the taxpayer’s
intention to stay in England was unlimited.
However you must always remember that the deemed domicile (
IHTM13024) rules may apply for the
purposes of IHT. In addition the Act makes particular provision for
those who apply for and/or exercise voting rights (
IHTM13026) and for visiting forces (
IHTM13027).
Evidence of intention is the factor that gives rise to
difficulties given that the courts are slow to exclude any detail
of a person’s life. That said personal declarations are
generally given a low weight when considering the evidence as a
whole and if a domicile of choice cannot be established clearly
then your current domicile does not change.
If a domicile of choice is established then any further
change needs to satisfy both tests above. Accordingly, a subsequent
change in residence or a change in intention alone will not change
your domicile. Furthermore, if you leave your domicile of choice
intending never to come back but do not adopt a new domicile of
choice, e.g. if you have not decided to remain in the new country
permanently, then your domicile of origin revives.
Example
If David, who had a domicile of origin in England, moves to
Israel permanently he acquires a domicile of choice in Israel. Some
years later he changes his mind and decides to leave. However,
while he is still resident in Israel his domicile does not change.
When he does leave Israel he lives in the USA, principally New York
State and Delaware but does not know whether he wishes to stay in
either permanently. In such a case his domicile of choice in Israel
is at an end and his domicile reverts to England. Compare this with
the example at the foot of
IHTM13021 where leaving a domicile of
origin for good does not change your domicile.
