This case examined the issue of residence status
The taxpayer was an Austrian national who came to work in the UK to obtain some international experience and with the original intention of spending approximately two years in the UK.
He made frequent trips back to his home in Austria and he gave extensive evidence to the tribunal regarding his personal circumstances in support of his intentions, which were unequivocal.
Following the guidance in IR20, the taxpayer would have been expected to become ordinarily resident from the beginning of the tax year following the third anniversary of his arrival following the practice in IR20.
However, during that three-year period he had purchased a property in the UK, not because he intended to stay permanently in the UK but because the property market was thriving and he felt that this made better commercial sense than renting.
HMRC contended that, following guidance in IR20, the taxpayer became ordinarily resident at the point that he bought the UK property.
The taxpayer contended that the purchase of a flat should not have a bearing on his ordinary residence position, as there was no basis for this in law.
The First Tier Tribunal found in favour of HMRC and although it was noted that the purchase of a property in itself would not be fatal to a claim for non-ordinary residence, 'the determination of ordinary residence status requires objective examination of immediately past events, and not intention or expectation for the future'.
The key question was at what point in time 'did the purpose of the taxpayer living where he did (ie in the UK) have a sufficient degree of continuity to be described as settled'?
On the evidence, it was decided that he had become ordinarily resident in the UK from the point that he had acquired the property, as this was considered to be the point at which he chose to ‘remain in London for a settled purpose, namely his employment, and adopted a pattern of living which in fact continued until 2002'.
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