Gaines-Cooper (and others) has failed in his latest bid to overturn court decisions in favour of HMRC. The Supreme Court dismissed appeals by Gaines-Cooper and two other taxpayers who contended that HMRC’s booklet IR20, which provided general guidance on residence until it was replaced by HMRC6 in 2009, set out a clear test that as long as a taxpayer limited days in the UK on average to no more than 90, then the right status was non-resident. But the Supreme Court held that ‘the correct interpretation of the guidance was that the 90 day test applied only to those taxpayers who had clearly left the UK and that this did not apply in the two cases considered’.
The absence of clear rules (in all areas of tax) does lead to uncertainty for the taxpayer. In the case of UK residency we will have the statutory test next year but there will be significant uncertainty for those who believe that they have already left the UK.
On a wider point what is clear is that any HMRC guidance is only that guidance. HMRC get it wrong and the taxpayer should not rely on it. Ultimately the underlying law must be consulted.
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