Proes v Revenue Commissioners

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1996 No. 157R]
• Court: High Court

High Court

[1996 No. 157R]

Proes v. Revenue Commissioners

Claire Proes

Appellant

and

The Revenue Commissioners

Respondents

Cases mentioned in this report:-

In Re Furse (deceased) [1980] 3 All E.R. 838.

Mara (Insp. of Taxes) v. Hummingbird Ltd. [1982] I.L.R.M. 421.

Ó Cúlacháin ó cúlacháin v. McMullan Brothers Ltd. [1995] 2 I.R. 217; [1995] 2 I.L.R.M. 498.

Prior-Wandesforde v. the Revenue Commissioners 1 I.T.R. 249.

Udny v. Udny (1869) L.R. 1 Sc. And Div. 441

W. v. W. [1993] 2 I.R. 476; [1993] I.L.R.M. 294.

Revenue - Domicile - Domicile of choice - Acquisition and abandonment of domicile of choice - Ordinary residence - Intention to reside permanently - Burden of proof - Effect of abandonment of domicile of choice - Income Tax Act, 1967 (No. 6), s. 76(1) and (2).

High Court - Jurisdiction - Case stated - Principles - Findings of fact - Inferences - Mixed questions of law and fact.

Case stated from the Circuit Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Costello P.,infra.

On the 28th February, 1994, the Circuit Court in Cork heard the appellant's appeal against a determination of the Revenue Commissioners, dated the 7th June, 1991.

By case stated dated the 6th November, 1996, the Circuit Court (His Honour Judge Murphy) submitted the following question for determination by the High Court:-

". . . having regard to the evidence given and the facts found by me as aforesaid, and having regard to the submissions of law which were made thereon, was I correct in law in determining that the appellant had acquired a domicile of choice in the State by residing in Kinsale since 1982?"

The case stated was heard by the High Court (Costello P.) on the 6th May, 1997.

Section 76 of the Income Tax Act, 1967, provides:-

"(1) [T]ax chargeable under Case III of Schedule D in respect of income arising from securities and possessions in any place outside the State shall be computed on the full amount thereof arising in . . . the year of assessment whether the income has been or will be received in the State or not . . .

• (2) Subsection (1) shall not apply -

  • (a) to any person who satisfies the Revenue Commissioners that he is not domiciled in the State, or that, being a citizen of Ireland, he is not ordinarily resident in the State . . ."

The appellant was born in Cork of Irish parents, but left Ireland in 1931. She married an Englishman and became a British national. She lived outside Ireland until her husband's death in 1982, when she returned to a holiday home in Kinsale. Friends advised her not to make any permanent decisions as to her future immediately following her husband's death, but she always envisaged returning to live near her daughters in England. In 1992, she bought a house in London, where she eventually intended to live.

In 1991, the Revenue Commissioners determined that the appellant was domiciled in the State for the years 1982 to 1990.

On appeal, the Circuit Court found that, although the appellant was domiciled in England until 1982, her length of residence in Cork was difficult to ignore. The court determined that the appellant had made a domicile of choice in this jurisdiction.

In November, 1996, the Circuit Court stated a case to the High Court.

Held by Costello P., in answering the case stated, 1, that everyone received a domicile of origin at birth, but might acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence.

W. v. W. [1993] 2 I.R. 476 considered.

2. That a domicile of choice may be lost by abandonment.

Udny v. Udny (1869) L.R. 1 Sc. And Div. 441 followed.

3. That the burden of proof was on the taxpayer to establish domicile.

Prior-Wandesforde v. the Revenue Commissioners 1 I.T.R. 249 considered.

4. That the High Court, when considering a case stated as to whether a particular option was correct in law, should apply the following principles:-

• (i) findings of primary fact by the trial judge should not be disturbed unless there is no evidence to support them,

• (ii) inferences from primary facts are mixed questions of fact and law,

• (iii) if the trial judge adopted a wrong view of the law, his conclusions should be set aside,

• (iv) if the trial judge's conclusions are not based on a mistaken view of the law, they should only be set aside if he drew inferences which no reasonable judge could draw.

Mara (Insp. of Taxes) v. Hummingbird Ltd. [1982] I.L.R.M. 421 andÓ Cúlacháin ó cúlacháin v. McMullan Brothers Ltd.[1995] 2 I.R. 217 applied.

5. That the correct question to be answered by the trial judge was whether the appellant had abandoned her English domicile of choice, not whether she had acquired a new domicile of choice in the State. In this case, no intention to abandon the English domicile could be inferred from the admitted facts.

6. That the trial judge was incorrect in law in determining that the appellant had acquired a domicile of choice in the State.

Cur. adv. vult.

Costello P. 5th June, 1997

Introduction

The appellant was born in Bandon, County Cork, in 1916, of Irish parents. As a young woman, she left this country and took up employment in England and there married an Englishman in 1940. She became a British national and resided until her husband's death outside Ireland (except for a short period in the war years). When her husband died in 1982, she had returned to live in Kinsale where she and her husband had had a holiday home for many years. The question that arises in this case is whether she has been domiciled in Ireland since that time for the purposes of the Income Tax Acts. Section 76(1) of the Income Tax Act, 1967, provides for payment of income tax on income arising from securities outside the State, but sub-s. (2) provides that sub-s. (1) is not to apply "to any person who satisfies the Revenue Commissioners that he is not domiciled in the State". The appellant was assessed under sub-s. (1) for the years 1982/83, 1983/84, 1984/85, 1985/86, 1986/87, 1987/88, 1988/89 and 1989/90. She...