Weis v Revenue and Customs (INCOME TAX - domicile of origin/dependence - domicile of choice) [2025] UKFTT 348 (TC) (21 March 2025)

Neutral Citation Number: [2025] UKFTT 348 (TC) Case Number: TC09463 Appeal reference: TC/2021/14804 FIRST-TIER TRIBUNAL TAX CHAMBER Location: Taylor House, London Heard On: 4 – 7 February 2025 Judgment Date: 21 March 2025 B e f o r e : TRIBUNAL JUDGE AMANDA BROWN KC MANU DUGGAL ____________________ Between: AUBREY WEIS Appellant - and - THE COMMISSIONERS FOR HIS MAJESTY'S REVENUE AND CUSTOMS Respondents ____________________ Representation: For the Appellant: Mr Ben Elliott and Ms Calypso Blaj of Counsel instructed by Farrer and Co LLP For the Respondents: Mr Christopher Stone KC and Ms Georgia Hicks of Counsel instructed by the General Counsel and Solicitor to HM Revenue and Customs ____________________ HTML VERSION OF DECISION ____________________ Crown Copyright © INCOME TAX – domicile of origin/dependence – domicile of choice – appeal dismissed DECISION Introduction This appeal concerns the domicile status, for tax purposes, of Rabbi Aubrey Weis ( Appellant ) during the tax years 2005/06 and 2007/8 – 2015/16 ( Relevant Period ). Having reached the conclusion that the Appellant was domiciled in England and Wales in the Relevant Period, HM Revenue & Customs ( HMRC ) issued closure notices for each of the tax years on the basis that the Appellant was not entitled to claim the remittance basis of taxation with the consequence that tax was due on the Appellant's worldwide income in each of those years. The total of the adjustments to tax made by HMRC for those years is £6,322,880.69. Whilst the Appellant challenges the quantum of the adjustments, we are not, at this stage, asked to determine any amount of tax due. The Appellant was born in the UK to parents who had arrived in the UK shortly before the outbreak of World War II from Europe. Save for a short period between 1967 and 1970 the Appellant has resided in Manchester. He has built an extensive property business, established a Jewish Community, and brought up his family within a relatively small locality of Manchester. He prepared his tax returns on the basis that he was not domiciled in England & Wales, and he defends that position. The parties agreed that in this appeal, we must determine the Appellant's domicile status during the Relevant Period. In doing so we must decide the following issues: (1) Did the Appellant's father Pinkas Weis ( PW ) acquire a domicile of choice in England by the time of the Appellant's birth and/or by 1 January 1970 [1] ? (2) If the Appellant had a domicile of origin or dependence in England, did he acquire a domicile of choice in Israel when resident there in the period 1 January 1970 – an unidentified date March/April 1970? (3) If the Appellant's domicile of origin or dependency prior to being resident in Israel was not England and/or he did in fact acquire a domicile of choice in Israel, did he subsequently acquire a domicile of choice such that he was domiciled in England in the Relevant Period? We are grateful to all Counsel and those instructing them for their assistance in this appeal. For the reasons set out below we have decided that the Appellant's domicile of origin/dependence was England and that he did not acquire a domicile of choice in Israel in the period from 1 January 1970 – his departure in March/April 1970. For completeness however, we also consider that were we required to have done so, we would have determined that he had acquired a domicile of choice in England. We therefore dismiss the appeal. Relevant legal test There was broad agreement between the parties as to the legal test to be applied when determining an individual's domicile but subject to some nuances. Both parties agreed that the relevant principles of law were comprehensively reviewed by the Tribunal most recently in Strachan v HMRC [2023] UKFTT 617 (TC) ( Strachan ) paragraphs [33] – [157]. With thanks to the Tribunal panel in that case (Judge Redston and Ms Shilaker) we adopt that review. Given its length we distil the relevant principles, as far as they relate to this appeal and by reference to the case law binding upon us, as follows: (1) Every individual has a single domicile. (2) Domicile of origin of an individual (born within a marriage) will be that of their father. (3) If the father adopts a subsequent domicile of choice prior to the individual reaching the age of majority the individual will acquire a domicile of dependency consistent with that domicile of choice. (4) Domicile of origin/dependency prevails in the absence of a subsequent acquisition of a domicile of choice Re Fuld [1968] P 675 ( Fuld ). (5) Domicile of origin is "more tenacious" than domicile of choice ( Kelly v Pyres [2018] EWCA Civ 1386 ( Kelly )). (6) In order to adopt a domicile of choice there is a prerequisite of physical residence in the place chosen. The residence in question must be the individual's sole or chief residence. (7) In addition to residence there must be an intention that such residence has some permanence. The language adopted over time regarding this state of mind has variously been described as follows: (a) "elected that place as his permanent and abiding home" ( Jopp v Wood (1865) 4 De GJ & Sm 616) (b) "permanent home" ( Whicker v Hume (1858) 7 H. L. Cas. 124) as further explained in Moorhouse v. Lord (1863) 10 H. L. Cas. 272 as meaning a place "where he has no other idea than to continue there, without looking forward to any event, certain or uncertain" (subsequently confirmed in Winans v Attorney General [1904] AC 287 ( Winans ), IRC v Bullock [1976] 1WLR 1178). (c) "of establishing himself and family there, and ending his days in that country" ( Bell v Kennedy (1868) ( Bell )). Language also adopted in IRC v Bullock [1976] 1WLR 1178 ( Bullock ) but explained in Barlow Clowes International v Henwood [2008] EWCA Civ 557 ( Barlow ) as requiring "the need for … a fixed purpose … [to] live in the country of his domicile of choice". (d) "continuing to reside there for an unlimited time. … freely chosen, and not prescribed or dictated by any external necessity… fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. … settling" ( Udny v Udny (1869) LR1 Sc & Div 441, Fuld ). (e) "remain without any intention of further change except possibly for some temporary purpose" ( Winans ). (f) "settle permanently and indefinitely" ( Cyganik v Agulian [2006] EWCA Civ 129 ( Cyganik )). (g) "home", "living" as distinct from working ( Kelly ). (8) Where there exists an intention to return to the place of birth (origin) "upon a clearly foreseen and reasonably anticipated contingency … the intention … is lacking; but, if he has in mind only a vague possibility, [of returning] … such a state of mind is consistent with the intention required by law" ( Fuld ). (9) In establishing the relevant intention regard may be had to "conduct and acts before and at that time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency." ( Re Grove (1888) 40 Ch D 216). (10) The burden of proof rests with the party seeking to establish a domicile of choice ( Winans ) which is to be proven on the balance of probabilities ( Barlow ). (11) The assessment and determination of domicile is a multi-factorial one to be undertaken by the Tribunal by reference to all the facts, applying such weight to the relevant factors as is appropriate recognising that adopting a domicile of choice is a "serious matter" ( Fuld , Cyganik, Barlow ). The nuances invited upon us Despite the broad agreement, nuanced submissions on the relevance of those principles were made with particular emphasis on where we should focus when assessing the evidence. The Appellant's focus was on the adherence of domicile of origin and the high bar which must be reached before domicile of origin is replaced by a domicile of choice, particularly where there is no evidence of a positive choice having been made. It was contended that faced with any element of uncertainty or an unfixed intention, domicile of origin must prevail. It was also contended that a prolonged period of residence in England was insufficient to establish a domicile of choice without the concomitant intention to end one's days in England. We were warned that to consider the test as simply determining a subjective intention to settle or make a home in England was to put an impermissible gloss on the issue. It was contended that a subjective intention to end one's days in a country of residence would not be established where the reason for continued residence was contingent on a clearly foreseen and reasonably anticipated end point. In such a case the residence would be temporary and for a fixed purpose. HMRC contend that we should apply the legal test articulated above to the facts of this case and that our focus should be on where PW and the Appellant had, in each case, chosen to "settle". The principal difference between the parties on the law centred on the importance of the phrase "ending [his] days". The Appellant contends that having a home or apparently being settled does not satisfy the test for a domicile of choice. A settled life must be accompanied by an intention to remain resident for an indefinite period with no contingency. HMRC contend that the phrase is one of a number of articulations used to assess whether a person is settled. We agree with the Tribunal in Strachan on this point. Rejecting a similar submission by the Appellant in that case, the Tribunal considered that when Lord Cairns used the term "ending [his] days" in Bell it was not used as a "freestanding test by which domicile status was to be established". Furthermore, in Barlow the "ending of days" concept had simply been one way of testing where Mr Henwood was settled. We consider that the test we must apply is a comparatively clear one, though not necessarily an easy one. We must evaluate all of the evidence weighing everything in the balance to determine where each of PW and the Appellant intended to settle their lives, making that country their permanent home. We consider that this is a big picture exercise. In essence, on the facts as we find them and by reference to the inferences we can reasonably draw from the evidence: did PW and, separately, the Appellant, consistently reside in the UK expecting to stay with no fixed idea to leave or change country of residence? Approach to evidence In undertaking this multi-factorial exercise, we adopt the following approach to the evidence: (1) Where there is relevant contemporary documentary evidence, such evidence is generally to be preferred, particularly where the documents present an inconsistent picture to that in oral testimony given the fallibility of human memory ( Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) , CXB v North West Anglia NHS Trust [2019] EWHC 2053 (QB) and Kogan v Martin [2019] EWCA Civ 1645 ( Kogan )). (2) The Tribunal must take account of all the evidence available to it and where oral testimony is not believed the Tribunal must explain why ( Kogan ). (3) It is inappropriate to reach a conclusion about witness credibility based solely on the way they gave evidence. The ordinary process of reasoning requires us to consider matters such as consistency of the account with known facts, previous accounts given by the witness, other evidence and the overall probabilities. However, an assessment of credibility could quite properly include the impression made upon us with due allowance being made for the pressures that might arise from the process of giving evidence. ( Re B-M (children: findings of fact) [2021] EWCA Civ 1371 ). We also note that the cases to which we were referred provide us with the following guidance in the context of domicile cases: (1) Length of residence is not itself evidence of intention but the longer the period of residence and the "more it is home" the more likely the inference that it was accompanied by the requisite intention to acquire a domicile of choice ( Holliday v Musa [2010] EWCA Civ 355). (2) We must be satisfied that there is "clear cogent and compelling evidence" of the relevant intention to adopt a domicile of choice ( Kelly ). (3) The approach to assessing a stated intention is to be "examined by considering the person to whom, the purposes for which, and the circumstances in which [the stated intentions] are made and they must further be fortified and carried into effect by conduct and action consistent with the declared expression." ( Ross v Ross HL [1930] AC 1). (4) To test a stated intention the "keys" are to consider "tastes, habits, conduct, actions, ambitions, health, hopes and projects." ( Casdagli v Casdagli [1919] A. C. 145) (5) Whilst we must determine the subjective intention of the individual, we must do so by reference to an objective assessment of the evidence taken in the round and self-serving statements from the party asserting a relevant intention should not be accepted without corroboration in terms of the actions and facts of life which can be seen to support such assertions ( Barlow, Fuld, Bell ). (6) A tax declaration as to domicile is "far from conclusive" but nevertheless a relevant factor in the multi-factorial analysis ( Fuld ) (7) Citizenship is a concept distinct from domicile, but citizenship is one of the factors to be taken into account in determining domicile ( Bullock ). (8) Despite the tenaciousness of domicile of origin, a weak attachment to the country of origin is a relevant factor when undertaking the multi factorial exercise ( Barlow ). At this juncture and before moving to consider the evidence itself, we note that the Appellant has lodged parallel judicial review proceedings in which he invites the administrative court to determine that he had a legitimate expectation that his domicile was not in England at least until 2013. This is on the basis, so it is said, that in the period from 2000 – 2013 HMRC had accepted the Appellant's stated position that he was not domiciled in England. Those proceedings are essentially not relevant to our decision. However, a question arose as to whether a belief that HMRC would not challenge domicile prejudices the Appellant in these proceedings as a consequence of him not having retained evidence which may have assisted us in this appeal. HMRC challenge that there is any prejudice on the basis that the probability of further evidence being available had the matter been raised sooner is small; in this regard, they point to the paucity of documentary evidence and the scope of the evidence the Appellant chose to present, or more particularly the evidence that he chose not to present. They point to the fact that all information obtained from the Appellant was on compulsion requiring the issue of information notices and/or the threat of a request for specific disclosure. Having considered the matter we have concluded that we must do what we can with the limited evidence. We note that HMRC bear the burden of proving either that PW had acquired a domicile of choice in England no later than 1 January 1970 or that if PW's domicile of origin persisted to and beyond that date (because either we conclude that PW did not acquire a domicile of choice in England or because one cannot be proven) that the Appellant had a domicile of choice in England which continued into the Relevant Period. As such, and in the main, any prejudice that arises from a lack of evidence in the period from 2000 to 2013 would be against HMRC, contrary to the claim of the Appellant. Evidence We were provided with a bundle of documents comprising 2,088 pages. Consistent with the approach adopted by the Upper Tribunal in Adelekun v HMRC [2020] UKUT 244 (TCC) we reminded the parties that we could not be expected to take account of every document in the bundle. Instead, we would take account of documents to which we were expressly referred either in the hearing, in the witness statements, skeleton arguments or notes on evidence. In the end we were referred to a comparatively limited number of documents. We also received witness statements and sworn oral testimony from the following witnesses: (1) The Appellant; (2) Mr Joel Weis ( JW ), the Appellant's son; and (3) Mr Jason Selig, the Appellant's accountant. Reasonable adjustment was made for the Appellant to give evidence by video link from his home with very regular breaks due to his health. Respecting the Appellant's age and physical impairments and a delay in transmission via the video link, we note that we found that the manner in which he gave his evidence was, on occasions, overly ponderous with short answers to simple but evidentially relevant questions taking a long time to be delivered. However, and in our view, self-serving answers were more quickly and coherently delivered. This inconsistency could not be explained by reference to the length of time that the Appellant had been giving evidence prior to breaks or time of day. Further, he appeared to have precise recall of some details of events and intentions whilst living in Israel in the late 1960s but with limited or no precise recollection of more recent but important and pertinent information associated with his life and intentions in England. We have particular regard to the guidance referenced in paragraph 16(5) above that we are entitled to treat self-serving evidence with a high degree of circumspection where not supported by contemporaneous documentation. On the basis that the critical focus of the Appellant's evidence was to provide a self-serving statement of intention both for himself and PW (his father), and absent any contemporaneous or other documentation to support these intentions, we have in the main not accepted his evidence on the issue. We found JW to be an honest witness keen to assist the Tribunal. His answers were all clear and complete. The evidence of Mr Selig was not material to the appeal. His witness statement was almost exclusively concerned with what was asserted to have been HMRC's acceptance of the Appellant's domicile status in periods prior to the Relevant Period and their conduct when seeking to determine the Appellant's domicile status in the Relevant Period. In any case, the Appellant relied only to a limited extent on Mr Selig's oral evidence as noted below. The parties helpfully prepared very comprehensive notes on evidence (HMRC's supported by an ingenious map); we are grateful to them all for these notes which assisted us greatly. From them we summarise the agreed evidence and the contentious evidence. We do not refer to every evidential point made by either party but to the ones which we consider most pertinent to the issues we have to determine. However, simply because we have not referred to them, does not mean that we have not taken them into consideration. We carefully considered each of the notes and all the material referred to in them together with the skeleton arguments before reaching our decision. Agreed evidence PW As identified in issue 1, we must determine whether PW acquired a domicile of choice in England before the Appellant attained the age of majority on 1 January 1970. PW was born on 1 July 1909 in Tyachiv which was, at that time part of Hungary, subsequently Czechoslovakia and now Ukraine. That was also the birthplace of his parents, and his domicile of origin is therefore outside England/Wales. PW's great grandfather is buried in Israel at the Mount of Olives. When he was very young, he moved to Romania with his parents. In his mid to late teens he left his parental home to study in Slovakia, Switzerland and France. He came to England in 1938 on advice of a colleague at Strasbourg University initially to London but, when his parents and sibling arrived in England, he moved to be with them in Manchester. For the family England was seen as a safe harbour in the context of the danger to the Jewish people of remaining in Europe at that time. In the Appellant's own words, PW "chose to settle in the UK because the UK was an attractive place for him to get work and bring up a family". In 1948 PW naturalised as a UK citizen. He was also granted a certificate of naturalisation in the USA on 5 March 1982. He never applied for Israeli nationality. PW's working career was spent at the University of Manchester. He would periodically and with reasonable regularity lecture in Israel. In 1946 he married the Appellant's mother in Buxton and lived in a house in Salford where they had their first son in September 1947. The Appellant was also born whilst living in that first property. At or about the time of the birth of their third child, a daughter, PW and his wife purchased their second family home in close proximity to the first and within the locality of the Chassidic Jewish community in Salford/Manchester around 1952. PW continued to own that second property until it was destroyed by fire in 1972. No property was retained by PW's family outside England. PW's parents both died in Manchester. His father died in 1955 and was originally buried in Manchester but his remains were exhumed and reburied in Israel in 1956. His mother died in a car accident in 1970 and was buried in Israel. There is no evidence of PW owning or buying residential property for himself except in Manchester. PW had caring obligations for his mother until her death. PW made a number of property investments and managed them in addition to his employment obligations to the University. PW and his wife left Manchester in 1972. After leaving the UK in 1972, PW received cancer treatment in the USA. PW applied for and was granted British and American nationality but never applied for Israeli nationality. He died in 1995. The Appellant The Appellant was born in Manchester on 9 December 1949 as a British national and remains a British national; he has no other nationality. He was educated predominantly by private tutors at home and at the home of another boy. However, he did spend some time attending a small independent school in Manchester. As a child visits to Israel were limited (two trips one in each of 1963 and 1964). In 1967 the Appellant went to Israel to study with the intention of being ordained as a Rabbi. Whilst studying he would return home during the holidays and his parents kept his room in the family home for him. He completed that phase of study in 1970. The Appellant met his wife whilst on a trip back to Manchester for Passover in 1969. She was studying in Manchester, but her family lived in Israel. Consistent with Chassidic practice his marriage to his wife was facilitated (not arranged) in the summer of 1969. They were married in Israel in November 1969. Until the Appellant's studies were complete the couple lived in Israel in a rented flat and were supported by PW. The Appellant was deemed by legislation to reach the age of majority on 1 January 1970. The couple came to the UK in spring 1970. They did not go to live with the Appellant's parents. They initially lived in a rented flat shortly then purchased their first family home. In 1975 they moved to the residential property in which they now continue to reside. They have three children, two daughters and a son (JW). The daughters were born in 1970 and 1973. JW was born in 1981. The Appellant holds a rabbinical position in Israel. Following his return to the UK in 1970, the Appellant began to manage PW's property portfolio and had divested all the properties by 1977. The Appellant's own business interests were begun shortly after his return. He initially set up a small furniture business which he ran from home. When it started to grow it was operated from retail premises. He subsequently shifted the focus of his retail activities from selling furniture to selling pens. In addition, but from an unknown date, he also started to acquire a property portfolio of his own. By the mid-1980s the property business was starting to flourish and in 1986 he purchased a multi-let commercial property in Oldham which proved so successful that it provided the foundation for the significant growth of his property business. Once his property income was sufficient to support his family he ceased his retail operations. The property portfolio was and remains conducted through a number of different ownership structures including individual holdings, partnerships, nominee companies and syndicates. The Appellant is a director of in excess of 200 companies. The numbers of properties held has fluctuated over time but in value the portfolio continued to grow with a dip during the financial crisis in 2008. The precise value of the portfolio has not been disclosed to HMRC and was not available to us but in unconnected civil proceedings the value of the property assets insured under the trading name through which the various ownership structures operate was stated to be in excess of £1bn. Such a valuation is broadly consistent with the current estimated rental income of £50m per annum provided by JW in evidence. In 2000 the Appellant completed a DOM1 form and submitted it to HMRC on the basis that tax be declared on a remittance basis and tax returns were subsequently completed on that basis. In the tax year 2005/6 the Appellant returned £13.6m in rental and other income and £16.7m in tax year 2015/16. The Appellant's eldest daughter lived in the USA for a period but now lives in the UK. She and her now adult children all live in close proximity to the Appellant. His second daughter lived in Israel and now lives in the USA. JW studied in the US but returned to the UK in 2008 in order that he could take over the property business from the Appellant. He and his children now also live in close proximity to the Appellant. Upon becoming involved in the Appellant's business, JW streamlined the extensive property portfolio. Since approximately 2015 JW has been effectively running the business though the Appellant has retained a role and remains an important part of the business. At all times in the Relevant Period the Appellant had the financial means to make a move to Israel had he wished to do so. In parallel to his business interests, and from the point of his return to the UK, the Appellant continued his religious studies. He held a prominent position in the Satmar community as the Rosh Kollel (the leader of communal religious learning). In the early 1990s the Appellant established the Kol Rinah Jewish Community in memory of a familial ancestor. Initially the community comprised a small group of 10 families worshiping in the Appellant's dining room; however, the community grew. On 23 July 1993 the property next door was purchased and became the main Kol Rinah synagogue. The Appellant is the leader of the community bearing responsibility for the community and its spiritual guidance; his role as leader takes a significant amount of his time daily. He attends synagogue daily and spends up to 2 hours per day in prayer. In 2008 the RNH Synagogue and College was established by the Appellant to take over the administration and finances of the synagogue which had formerly been the sole responsibility of the Appellant. The Appellant's firmly held desire would be for JW to succeed him as community leader. However, JW has not yet shown a willingness to take on this responsibility, a fact confirmed by JW's evidence in chief. The question of succession remains undetermined. Two charities have been established or co-established by the Appellant: AW Charitable Trust (founded in 1981) and the Helping Foundation (established 2004). Sizeable donations are made to these charities (in the Relevant Period assets and cash exceeding £175m). The charities have no employees with all donation decisions being made by the Trustees of the charities (in each case the Appellant and his wife are trustees with other close friends). The Helping Foundation gave grants of over £6.6m to 200 separate recipients in 2013. Identifying appropriate recipients and making the relevant donations involves a lot of work on the part of the trustees. The Appellant is a man in poor health. In 1990 he was diagnosed with type II diabetes. He has had an issue with his knee since 2007 which has had an increasing impact on his mobility. From 2008 the vision in his left eye has deteriorated. Further significant medical issues were diagnosed in 2013, 2014 and 2016, including further complications affecting his eyesight and a peptic ulcer. In 2018 he had a heart attack resulting in a coronary artery bypass. In 2021 he developed cellulitis. He is now unable to walk more than very short distances and cannot climb stairs. The Appellant is under the exclusive care of medical professionals in the UK in respect of all conditions. He has not sought to put in place replacement medical care providers in Israel or elsewhere. Since 2008 the Appellant has had a carer; the current incumbent has been in post for approximately the last decade. When the Appellant travelled to Israel prior to 2018 he was accompanied by his carer. The Appellant purchased burial plots in Israel for himself and his wife in 1996. The Appellant continues to reside in the UK. Contested evidence PW We were presented with the following evidence regarding PW's intentions: (1) The Appellant's evidence is that PW arrived in the UK on a temporary basis intending to return to Eastern Europe were that to be possible. However, when it became apparent that a return to Europe was unlikely, his intention was to move once there was no longer a reason for him to stay in the UK and were it possible to do so. (2) The Appellant stated that PW formed the intention to move to the land of Israel (as opposed specifically to the State of Israel) when such a move was possible, but that this intention became a reality much later in his life. (3) There is no contemporaneous documentation to support this intention, but we note that PW's papers were said to have been destroyed in the house fire in 1972. No explanation was given as to why the papers remained in the UK after PW was said to have left for Israel in 1972. (4) An indication that PW would not have left his mother in the UK thus tying him to the UK until her death (which came unexpectedly). Though the Appellant also indicated in cross examination that PW might have put his mother (the Appellant's grandmother) in a care home in the UK. There was no indication that PW ever intended to take his mother to Israel. We have no evidence where PW lived after he left the UK. The Appellant contends that pursuant to his intention to do so his father moved and lived in Israel. We note that accommodation was available for him in Israel identified by his daughter but that sufficient time was spent in the USA to allow him to acquire American nationality and he received his cancer treatment there. The Appellant Strength of family ties in Israel in 1970s: (1) There was a conflict in the Appellant's evidence regarding his brother. In his second witness statement and in evidence in chief it was stated that the brother had moved to Israel in 1967. However, the statement also indicates that the brother was living in the family home in 1972 when it burned down. (2) The Appellant's sister lived in Israel in 1970, marrying there, but we do not know when that occurred. (3) The Appellant's wife's family were resident and settled in Israel. (4) By his second witness statement the Appellant stated that his wife was uncertain about a marriage to the Appellant if such marriage entailed or required a move to Manchester and that she had to be persuaded to move. This was confirmed in oral testimony. However, the Appellant accepted in his second statement that his wife had appreciated the need to come to the UK for financial reasons. We can only surmise that she eventually dealt with these competing pressures as she moved to the UK with the Appellant. The Appellant's motivation for returning to Manchester in 1970: (1) In response to information requests issued by HMRC in 2014, 2015 and 2019 the Appellant stated that he returned to the UK to earn a living and start a family due to the greater financial security/economic environment offered in the UK. (2) In his first witness statement the Appellant's explanation was consistent with those responses and confirmed that his return was motivated by the desire to be able to financially support his family at a time when living in Israel was financially difficult. He also considered that it was easier to bring up a family in the UK. (3) By his second statement he introduced as an explanation for his return that he had effectively been called back to the UK to take over his father's business affairs so as to allow PW to emigrate to Israel and be supported by income derived through those business interests. The Appellant asserted that had his father not done so he would have stayed in Israel. (4) In oral testimony he accepted that he had at least contemplated and ensured that the possibility of returning to the UK was open to him prior to his marriage in November 1969 as living in the UK was a matter that may have prevented the marriage taking place. (5) In oral evidence the focus became that the return to the UK was prompted by PW's request that he so return. (6) There is no documentary evidence concerning the Appellant's return in spring 1970 (including no specific date of his return). Affinity with Israel: (1) The Appellant indicated in his second statement that he considered Israel to be an unstable country in which there was always a threat of violence, as evidenced by his calling the British Embassy soon after arrival to Israel on seeing a military helicopter over Tel Aviv. (2) The statement also stated that he would not want his children to be conscripted to the Israeli military. (3) Life in Israel was said to be "very difficult financially" in 1970 when he left. (4) Sizeable charitable donations are made by the charities associated with the Appellant and which the Appellant contends indirectly benefit causes in Israel. HMRC point to the recipients all being UK charities which the Appellant seeks to explain as reflecting the difficulties associated with giving directly to Israeli based charities. He claims to rely on the facilities provided by the recipient UK based charities to get donations to recipients in Israel. (5) In oral testimony the Appellant was adamant that he desired to end his days in Israel, a view he claims to have formed and held since residing in Israel (i.e. January – spring 1970) after reaching the age of majority. (6) The Appellant's affinity to Israel was expressed in evidence by Mr Selig. Property in Israel: (1) By his second statement the Appellant claimed that he had leased a first floor, three bedroomed apartment in Israel from 1993. However, during cross examination it was accepted that in the period from 1993 – 2003 the property in question was leased to the Appellant's son in law but that the Appellant had the ability to stay there when required. His capacity to occupy was described both as a visitor but also on the basis that he was paying rent for the use of the flat. The documentary evidence in the form of translated documentation indicates that the first lease in the Appellant's name was for the period 01/06/2003 to 31/12/2004 with no indication that it was a continuation lease. Further leases were granted to the Appellant within the Relevant Period. (2) The Appellant told HMRC in correspondence that the property referred to at (1) above was not considered suitable for the Appellant's long-term needs. In his first witness statement he claimed that he had alternative accommodation in Israel available to him in which he could live from 2006. However, in his second statement he confirmed that he did not have a formal property interest in that second property, which was and remains owned by his son-in-law. In oral testimony he stated that his son-in-law is the legal owner but that he is the beneficial owner of it. It was accepted that this second property is also not one suitable to accommodate the Appellant and his wife. The property is only accessible by stairs which, due to mobility issues, neither the Appellant nor his wife could access. The Appellant has not visited the property since 2018. Kol Rinah: (1) HMRC produced planning applications which indicated that the Appellant's home at the time was altered. They sought to establish that the property was developed to accommodate the Kol Rinah synagogue. JW confirmed in oral evidence that the synagogue services were initially held in the Appellant's dining room but that the basement was converted as the congregation grew. The Appellant claimed there had been no change to the footprint/floor plan of the property despite having been granted two separate planning permission approvals. He did not, however, deny that communal prayers and activities of the synagogue had been initially in the dining room and subsequently in the basement. (2) Succession of the leadership of the community is unclear. (a) In a response, dated 31 October 2014, to one of HMRC's information requests the Appellant indicated his plan was to appoint JW as his successor but that it would take at least 2 years as JW would need to be appointed as a Rav Hatzo'ir (junior community leader) first. (b) On 28 April 2015 the Appellant indicated to HMRC that it was anticipated that JW would be in a position to succeed the Appellant by the time JW was 40 (in 2021). JW was appointed as Rav Hatzo'ir in 2018. (c) In his second witness statement the Appellant confirms that before he could move to Israel, he would need to find a successor for his position at Kol Rinah. There must be someone who takes this role in order that the community has the focal point for teaching and pastoral care. (d) However, absent a willingness on JW's part, the Appellant stated in oral evidence that he has begun to explore other options and now considers it feasible that his son-in-law by marriage would be a suitable successor. Though still young (in his 30s) he is said to be a man who has reached the required level of learning to take on the role with comparative ease and speed. (e) In cross examination the Appellant sought to indicate that handing over leadership was a matter which could be effected overnight if needed and not one which might take many years. JW too indicated that, whilst not ideal for the community, the departure of the Appellant could be managed. The various contingencies which are said to have prevented the Appellant's intended move to Israel: (1) Winding up his father's affairs. This contingency was introduced in the Appellant's second witness statement but not advanced during the period of HMRC enquiries. The Appellant's second statement explained it as the reason for his return. In oral evidence he stated that he did not consider it reasonable to undertake a fire sale of the assets upon his return to the UK. The properties needed to be appropriately managed to provide income for PW following his departure from the UK. However, the interests were sold by 1977. No evidence was provided as to the Appellant's position on an intention to return to Israel in or shortly after 1977. (2) In his second witness statement it was stated that it was the Appellant's own business affairs that prevented him from moving to Israel. This explanation is consistent with the answers given to HMRC's information requests that the requirement to be in the UK rather than Israel in the early part of the Appellant's married life was to earn a living and raise a family. We note that it is accepted that the business was substantively handed over to JW by 2015/16 but the Appellant did not prepare himself to leave at that point (when his medical position was more favourable than it is today). (3) The explanation for not moving to Israel at that point is then said to be because of his Kol Rinah commitments and the need to find a successor for his position (see above). (4) The Appellant also identified the point at which a move to Israel was considered possible, (as stated in the Appellant's response to HMRC's information request provided on 28 April 2015 and restated in his grounds of appeal dated 5 October 2019) as the age of 75. The Appellant is now 76 and remains in the UK. (5) During the course of evidence a further impediment to relocate to Israel was proffered: the Appellant's wife's ill health. We were told that she fell and broke her hip in October 2024 and is unable to fly. This was not mentioned in his second witness statement which was not signed until November 2024. Submissions on the evidence We start with HMRC's case as it is they who bear the burden of establishing the first issue they rely on, namely that PW had adopted a domicile of choice in England prior to the Appellant reaching the age of majority and the third issue: that the Appellant adopted a domicile of choice if his domicile of origin/dependency was not England. HMRC's submissions It was HMRC's case that PW moved to the UK abandoning his domicile of origin and choosing to settle in England (Manchester in particular). They contended that he had no particular affinity to his origin as he had spent very little time in the country of his birth or those of his childhood. As soon as he was able, he began a nomadic period of study before the start of the second world war. Accordingly, the usual adherence of domicile of origin is less strong in PW's case. HMRC contend that there is no direct evidence of PW's asserted intention not to settle in England and that his intention to settle must be derived from the facts of his life as known to us. At the time of the Appellant's birth PW: was 40; he had resided in Manchester for 11 years; studied at and obtained a secure job at the University of Manchester; met and married his wife and given birth to their eldest son; the family prayed at a local synagogue; lived close to his parents and three brothers and purchased a family home. On this basis and by reference to the legal test we are to apply there is sufficient evidence taken together for us to be satisfied that PW had chosen to make Manchester his indefinite home at that time. By 1 January 1970 little had changed save for the effluxion of time and, if anything, PW had become more settled. HMRC accept that PW may have had a desire to be laid to rest in the land of the Jewish ancestors (as indeed happened) but that is insufficient to constitute a fixed intention to leave the UK so as to undermine the strong factors which indicate that there was a settled intention to reside in the UK. It is HMRC's position that, on the facts, it is reasonable to infer that PW did not actively consider a move to Israel until after the death of his mother in September 1970. They contend that at the time of her sudden death PW's mother was in good health and it is therefore improbable that PW was planning or anticipating an imminent move to Israel at that time and abandoning his responsibilities to her. If HMRC are wrong regarding PW they contend that the evidence that the Appellant settled for an indefinite period in England which persisted throughout the Relevant Period is stronger than for PW. By the start of the Relevant period the Appellant had been in the UK for all but the first few months of his majority; he and his wife had set up home, had three children; he had established a successful business and a thriving Jewish Community and synagogue which he led. His connections to Israel were weak by comparison. They contend that he held a lease in a property that was accepted as unsuitable for his long-term needs and had some arrangement in respect of alternative accommodation falling short of any legal ownership. Although he was visiting Israel on a regular basis throughout the year, those visits were insufficient to infer that his life in Manchester was temporary or for a fixed purpose. On the contrary it was the life of someone whose settled and permanent home was in Manchester. Regarding issue 2 HMRC contend there is no evidence that the Appellant even intended to settle or make his permanent home in Israel or that the return to the UK was for a temporary purpose. This was said to be because he was in Israel for the defined purpose of studying. For the majority of the period he was in Israel he was legally a minor and incapable of forming the necessary intention to acquire a domicile of choice and had returned to the UK within 3-4 months of reaching the age of majority. HMRC further submit that had the Appellant really held the intention he now purports to have held, he would, by now, have moved to Israel. He has chosen to continue to reside in Manchester because that is where he has a settled and permanent life. The Appellant's submissions The Appellant contends that HMRC have not met the burden of proof on them as regards PW. They contend that there is insufficient evidence available to us to conclude what PW intended when he arrived or when he remained in Manchester particularly given that in 1972 PW left the UK and never resided back in the UK in the remaining 23 years of his life. On that basis the Appellant contends that he has always had a domicile of origin outside England, and it is for HMRC to then establish that his period of residence in Manchester has, throughout the Relevant Period, been for a settled and indefinite purpose. The Appellant submits that in light of the evidence HMRC cannot do that because the Appellant's evidence is plainly that he returned to the UK for a temporary and fixed purpose. It is contended that throughout his period of residence in England the Appellant has remained subject to a series of contingencies each of which was temporary, fixed, and had a reasonably foreseeable end point: (1) when the Appellant came with his wife to the UK in 1970 that contingency was that his wife may not be happy here and he had promised her that they would return if that were the case, had she been unhappy he would immediately have returned to Israel; (2) his return to the UK had been precipitated by a request to wind up PW's property interests facilitating PW's emigration, once the business affairs were wound up, he would be free to return to Israel; (3) he needed to make a living to support his family, as his business was established, he needed to remain to continue it until the point at which he could pass on the reins of the business and fully retire; (4) having established the Kol Rinah community he could not leave until there was a suitable successor in place; (5) medical issues have then detained him in the UK. It is contended that each contingency should be considered in isolation as each meets or demonstrates a fixed but definite period for remaining and they are consistent with the stated intention of ending his days in Israel; an intention which he contends was formed in 1970 during his period of residence there. Findings of Fact From the evidence identified and the submissions made we make the following findings of facts and draw the following inferences: PW (1) Given the absence of any documentary evidence, the lapse of time, and the fallibility of memory combined with the non-specific nature of PW's asserted intention in self-serving evidence from the Appellant, we must infer his intention from the facts of his life. (2) PW does not appear to have lived in any single location for more than a few years (maximum 10) prior to arriving in the UK; but remained in the UK from 1938 – 1972. (3) However, once he was in the UK he established a stable life within a small locality. He lived close to his parents and siblings who also lived in Salford from 1939. He attended a synagogue in Manchester. He had a stable job and did not change employer throughout his career. He married in the UK to a German wife who outlived him but about whom we know little else. He naturalised in the UK in 1948. In the period prior to 1970 he owned residential property in the UK and his only family residence (and property for investment) was in the UK. (4) As far as we are aware he never travelled back to Eastern Europe. Until the Appellant's birth we have no evidence of any trips taken to Israel and visits during the Appellant's childhood were for the purposes of lecturing and/or Jewish festivals and holidays. The latter were limited in number. (5) He had three children who were all born in the UK but who at various points in early adulthood moved to spend time in Israel. His daughter appears to have done so on a permanent basis from sometime in 1970. His eldest son certainly spent time both in the UK and Israel in the late 1960s and early 1970s. The Appellant spent 3 years studying in Israel before returning to the UK. (6) As the Appellant expressly accepted, the UK was an attractive place for PW to work, bring up a family and settle in the post war period for those who had escaped Europe. A return to Eastern Europe was at best unattractive and possibly unsafe. Israel was a new state facing political instability for a number of years after its creation and we infer offered a less secure existence than England. (7) We consider that over time and certainly by 31 December 1969 the pattern of PW's life demonstrates, and enables us to infer, that he had made a positive choice to make Manchester his permanent and settled home. (8) Following his mother's sudden death in September 1970, we consider it possible that he reconsidered his position but the fact that he might have or actually did does not undermine our conclusion that he saw his permanent home as in Manchester prior to that decision. (9) He ultimately left the UK in 1972. However, he left all his papers in the residential property he retained until it burned down also in 1972. We consider this a factor that supports our view that his decision to leave the UK was one that left the possibility of returning to the place he had made home for the preceding 34 years. (10) That conclusion is also supported by our finding that PW continued to have business interests in the UK managed by the Appellant, which generated income to support him until 1977. (11) After departure the time spent in Israel and the USA is unknown, but he chose to be treated for cancer in the USA and took nationality there. (12) We do not know where he was when he died but he is buried in Israel. (13) Though not significant to the decision we need to make, we consider that the above findings make it more likely that his departure, in the first instance, was for a temporary purpose. The Appellant (14) The Appellant was born in Manchester and has resided there throughout his 76-year life but for a period of approximately 3 years when studying in Israel. (15) Until 1 January 1970 he was incapable in law of forming an intention to make Israel his domicile of choice. (16) By 1 January 1970 he had married his wife having persuaded her of the likely and reasonably imminent need to return to the UK to make a better living than that he could achieve in Israel. (17) Absent any evidence from the Appellant's wife we are unable to make a finding that his return in 1970 was contingent upon his wife not wishing in short order to return to Israel. (18) We do not accept the Appellant's evidence that the timing or purpose of the return to the UK in early 1970 was driven by a request from his father to return. There is no contemporaneous evidence of the request being made and it was not posited as a reason for the Appellant's return at any time prior to November 2024 when the second witness statement was produced. We consider it to be a self-serving and unsupported statement. Rather, we find that he returned to the UK for better work prospects and a safer environment to have a family. This is entirely consistent with the position taken in correspondence and in his first witness statement. (19) We accept that the Appellant had family ties through his sister and his wife's family in Israel when he departed and that after 1972 his parents spent at least some of their time in Israel; however we do not consider the connection sufficient to permit a conclusion that those ties were so significant in 1970 that the Appellant formed the requisite intention to make his permanent home in Israel at that time. (20) We therefore consider it highly improbable that he formed a fixed and indefinite intention to make his permanent home in Israel, the return to the UK then being for a temporary and fixed purpose. (21) Upon his return to the UK the Appellant settled his life and permanent home in Manchester. Within 15 years of his return, and certainly well before the start of the Relevant Period, the Appellant had a thriving business he had worked hard to establish, a home and family and was leader of a growing Jewish Community which he had founded. All present a compelling picture of someone who has a settled intention to make their permanent home in England. (22) Whilst the Appellant obtained a rabbinical position in Israel and had access to property in which he could stay for the purposes of meeting his obligations in that role, we do not consider either to be evidence that his life in England was temporary. (23) We consider that there is no basis for a conclusion that any of the explanations provided by the Appellant for remaining in England represent a fixed contingency. Rather we consider them to be a pattern of life which shows permanence and stability consistent with an intention to remain in Manchester indefinitely. (24) We accept that at various points in his life the Appellant may have had a vague or aspirational desire to move to Israel at some point and even that he may have had a fixed intention to be buried in Israel with his parents and forefathers. His heart may, in the spiritual sense described by Mr Selig, be in Israel but his "tastes, habits, conduct, actions, ambitions, health, hopes and projects" have since 1970, and certainly for the Relevant Period, been consistent with a settled intention to remain in England. Decision On the first issue we decide that probably prior to the Appellant's birth but certainly no later than 31 December 1969 PW had acquired a domicile of choice in England, abandoning his European domicile of origin. In doing so we fully acknowledge that, in general terms, domicile of origin is adhesive, but we consider that domicile of origin is less "sticky" for an individual who has spent considerable periods of time away from their country of birth. We also recognise that being compelled to leave one's country of origin does not, of itself, compel a conclusion that the place of destination represents a domicile of choice. However, as we reflect on PW's life in the period from his arrival in 1938 through to 31 December 1969 by reference to our factual findings, we are entirely satisfied that he acquired a domicile of choice in England prior to the Appellant reaching the age of majority. We consider that the absence of direct evidence of his intention does not result in a conclusion that no positive case has been made out. Accordingly, we find that the Appellant had a domicile of origin/dependency in England. On the second issue, whilst the Appellant was resident for 3 – 4 months in Israel after reaching majority, he could only acquire a domicile of choice there if we can be satisfied that in those few months, he formed the relevant intention to make Israel his permanent home and that the return to the UK was for a temporary and fixed purpose. In light of our findings of fact, we reject the case that the Appellant acquired a domicile of choice in Israel. In view of the above, we do not need to determine the third issue; but were we wrong on the first and second issues, and it fell upon us to decide the third, we are absolutely clear that the Appellant had acquired a domicile of choice in England before the beginning of the Relevant Period which persisted throughout on the basis of the facts as we have found them. Right to apply for permission to appeal 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. Release date: 21 st MARCH 2025 Note 1 The date on which, by virtue of section 1 Family Law Reform Act 1969, the Appellant reached the age of majority that provision reducing the age of majority, from 21 to 18 and deeming those over 18 as of 1 January 1970 to reach the age of majority on that date. [Back] BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII