Difference between revisions of "Introduction"

Revision as of 10:26, 5 November 2024

To view this Introduction in pdf format, click here: Introduction And What's New

Scope of this book

There are three original themes to this book:

(1) Taxation of foreign domiciliaries

(2) Taxation of non-residents on UK assets

(3) Taxation of UK residents on foreign assets

To attempt to cover these topics comprehensively is ambitious, perhaps quixotic, and if books could burst, this one might. But these territorial issues must be understood in a wider context: in taxation, as in life, everything is connected. So I discuss private client topics which go beyond the original themes of this book:

• substantial: fundamental terms and concepts, and tax avoidance codes

• procedural: disclosure/compliance, tax return filing positions, CDD, TRS

Co-authorship

This book has always benefited from comments and contributions from readers and discussions with my colleagues in chambers. It has now grown beyond my ability to maintain it all. The following chapters are now in the good hands of junior members of my chambers:

These names will be familiar to readers: Rebecca as the moderator of the online edition of this work; Mary as co-author of my Taxation of Charities; and Ross appeared as advocate in many of the cases he discusses.

If any readers are attracted to the challenge of adopting a chapter or section from this book please contact the author.

A statute-focussed approach

I set out statutory and other material verbatim:

... in the end we must always return to the words of the statute^[1]

Returning to the verbatim text, it is surprising how often one finds that the words do not say what one expects.

This is not just a common law approach. Richard Hyland tells this story of his class at Université Paris II Panthéon-Assas:^[2]

Mme Gobert asked simply: L’article 2 du Code civil, qu’est-ce qu’il dit? Article 2 of the Civil Code, what does it say?

My classmates were some of the best private law students in France. This was a question to which they knew the answer. One of them explained that article 2 provides for the nonretroactivity of the law. Mme Gobert looked at the student without smiling. Then she repeated the question. L’article 2 du Code civil, qu’est-ce qu’il dit? A different student mentioned Paul Roubier’s suggestion that a new law may be applied to les situations juridique en cours. Again she repeated the question. L’article 2 du Code civil, qu’est-ce qu’il dit? Another student tried, and then another, each new voice attempting yet a more refined statement of the concepts involved. After each comment she responded in the same way. It was my first French law class, so I did not know what to think. It seemed like a Zen-like version of the Socratic method. The French students were terrified. This was material they thought they knew, and yet they could not guess what was on her mind. Finally, one of the students had the presence of mind simply to read the code provision aloud. Mme Gobert’s eyes lit up. Mais bien sûr! she responded C’est ça qu’il dit!

The year 2023/24 in review, and the future

HMRC have had an unbroken run of successes establishing a UK domicile. Fisher finally reached Supreme Court, only to be promptly reversed by the F(no.2)A 2024. We have the first case on the statutory residence test, introduced in 2013 (A Taxpayer v HMRC), now on the way to the Court of Appeal, and the first on the remittance basis, introduced in 2008 (Seghal v HMRC). Scotland continues its fiscal drift from the UK, with Northern Ireland and Wales following.

But the changes of 2023/24 are overtaken by the surprise announcement in the Spring Budget 2024 of the abolition of domicile as a connecting factor for UK tax, from 2025/26, and the replacement of the remittance basis with a short term relief for foreign income/gains. The next edition of this book will be different from the present, and will have a new title.

Simplification/complification

OTS stated in 2017:

The UK tax code is widely cited as being the longest in the world”.^[3]

This claim had been made at least since 2010.^[4] In recent years Parliament added:^[5]

The Office of Tax Simplification estimated HMRC guidance at 90,000 pages in 2018;^[7] whatever the true figure, it will have grown considerably since then. This guidance was “not comprehensive” - something of an understatement; but according to the OTS “real life cannot be reduced to a neat description in a few (!) pages of writing”.^[8] F(no.2)A 2023 abolished the OTS. In its 12 years of existence, the OTS did not achieve much simplification, at least in relation to topics covered in this book, and I do not think it will be missed.^[9]

It is easier to talk of simplification. In the ill-fated “mini” budget of October 2022:

the government will embed tax simplification into the institutions of government ... and set a mandate to HM Treasury and HMRC to focus on simplifying the tax code.^[10]

The reader may think that satirists better identify the reality:

We will further complicate the UK tax system so that large companies can no longer find loopholes.^[11]

Spring Budget 2024 announced the abolition of furnished holiday letting relief from 2025/26. This will be a simplification; though that is not much to set against the size of this year’s two Finance Acts.

The future

We face an extended period of change and uncertainty, in politics, economics, law and taxation, and will continue to live in fiscally exciting times.

Thanks ...and request for help

I am very grateful to my colleagues in chambers, especially Robert Venables KC, Philip Simpson KC and Rory Mullen KC, for discussions on many aspects of tax. Yijia Liu as research assistant resolved many puzzles. I owe a great debt to Jane Hunt and Ruth Shaw who work committedly on this text throughout the year.

Comments from my readers and clients continue to be of the greatest value and interest. I am very grateful to all who commented, and in particular to John Barnett and Sam Dewes (who commented on a variety of topics), and Mark Pearce (cryptoassets). In order not to be defeated by the size of this work, readers' help is needed more than ever. If anyone would like to offer to write or revise a section - or chapter - of this book please get in touch.

The pleasure in writing this book consists in the interest of the questions which it raises, and the success which it may have achieved in answering them. On the basis of what is known at 1 April 2024, and assuming the F(no.2) Bill 2024 is enacted in its present form, it seeks to state the law for 2024/25.

Obtaining Further Advice - And Disclaimer

Further advice

If you want advice on which you are legally entitled to rely you can obtain it - but not from this work.

In particular, you may instruct the author to advise. I enjoy writing, but spend most of my time giving independent specialist professional advice in private client matters, especially areas covered in this work. For further details see https://www.kessler.co.uk https://www.kessler.co.uk

TFD Online

TFD Online is an online version of this book and more. It can be used:

(1) to search the text of this book or to access it online.

(2) to see if the book has been updated

(3) to correct or contribute to the book

TFD Online is moderated by Rebecca Sheldon, a member of Tax Chambers, 15 Old Square, Lincoln’s Inn.

TFD Online is accessible on https://www.foreigndomiciliaries.co.uk An authorisation code for a 3 week trial period is in the inside cover of volume 1.

Disclaimer

The professional bodies issue the Professional Conduct in Relation to Taxation with a disclaimer:

While every care has been taken in the preparation of this guidance^[12] the PCRT Bodies do not undertake a duty of care or otherwise (?) for any loss or damage occasioned by reliance on this guidance. Practical guidance cannot and should not be taken to substitute appropriate legal advice.^[13]

When that appeared in 2011 it seemed extraordinary. But nowadays no professional body issues guidance without a disclaimer.^[14] Similarly, and a fortiori, the views expressed in this book are put forward for consideration only and are not to be relied upon. Neither the author nor the publisher accept responsibility for any loss to any person arising as a result of any action or omission in reliance on this work. But could anyone have thought that a claim might arise in absence of this disclaimer?

A note to the lay reader

This book is not intended as a self-help guide, and is addressed to tax practitioners. In earlier editions I said: “... but it is readable for a lay person.” I think that is still true, though the text is more daunting than when I first wrote those words, because the law has become much more complicated. However, initiation in these matters must often be by the taxpayer. If you wish to research this subject in depth, and so take more control of your own tax affairs, read on. But for implementation you will need to find professionals to advise you. Self-help guides extol “the benefit of bypassing expensive lawyers”; but the bypass may prove the more expensive route in the long run.

Edition history

1st 2001	8th 2009	15th 2016	23rd 2023
2nd 2003	9th 2010	16th 2017
3rd 2004	10th 2011	17th 2018
4th 2005	11th 2012	18th 2019
5th 2006	12th 2013	19th 2020
6th 2007	13th 2014	20th 2021
7th 2008	14th 2015	21st 2022

This book was called Taxation of Foreign Domiciliaries for 9 editions; it changed to Taxation of Non-Residents and Foreign Domiciliaries in the 10^th edition.^[15]

Footnotes

1. ↑ R.F.C. 2012 Plc v AG [2017] UKSC 45 (the Rangers case) at [11]; see A judicial gloss
2. ↑ Hyland. Gifts: A study in comparative law, 1st ed (1989) p.xvi.
3. ↑ It is hard to empirically assess the claim that the UK has the longest tax code in the world, and OTS made no attempt to do so. But if any readers are aware of other serious contenders for that title, I would be interested to hear.
4. ↑ For older references see the Introduction to the 2016/17 edition of this work.
5. ↑ Finance Act page counts are a rough proxy for the ever growing complexity of the UK tax system, but not an altogether bad one. A (slightly) better proxy would also consider secondary legislation and HMRC guidance; and, perhaps, case law; then the page counts would multiply the Finance Act numbers set out here tenfold. For a discussion of the multidimensional concept of tax complexity, see Tran-Nam and Evans, “Towards the Development of a Tax System Complexity Index” (2014) Fiscal Studies Vol 35 p.341. OTS have published two (somewhat simplistic) discussions of tax complexity: Length of Tax Legislation as a Measure of Complexity (Apr 2012)

   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/193496/ots_length_legislation_paper.pdf

   OTS Complexity Index (2012)

   http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/193493/ots_complexity_index_methodology_paper.pdf

6. ↑ The unusually short length of the FA 2020 is due to the December 2019 election.
7. ↑ OTS, “Guidance for taxpayers: a vision for the future” (2018) para 1.21. These pages have assuredly not been printed or counted. Quantification raises methodological issues which deserve a short essay to itself. We have reached the stage where the amount of HMRC guidance is impossible to quantify: the words are uncountable. Within the limits of guesswork, and assuming 500 words per page (single spacing), the figure of 90,000 pages seems to me to be on the low side. There are 150 HMRC Manuals, just for a start. Perhaps the focus of enquiry should be whether HMRC guidance is too short, because 90,000 pages would not be sufficient to do justice to the topic. The legislation, measured by pages of the Orange & Yellow tax handbooks, can be counted and amounts to 20,836 pages in 2020/21 (that does not include DTAs, which would be another 3,000 pages). The Tax Cases reports, which began in 1875, and ceased publishing in 2014, reached 82 volumes and did not cover VAT.
8. ↑ Para 1.24.
9. ↑ This view is not unanimous; according to CIOT:

   “OTS has achieved a great deal”; letter to Chancellor of the Exchequer (24 October 2022).

10. ↑ HM Treasury, “The Growth Plan 2022".

    https://www.gov.uk/government/publications/the-growth-plan-2022-documents

    The emphasis, or one might say, rhetoric, of simplification has fluctuated. OOTLAR 2008 had 45 references to simplification. OOTLAR 2021 had none. The “Growth Plan 2022” had 15. In (I think) 2013 the government came up with the slogan “Creating a simpler, fairer tax system”, which OTS adopted; it imagines away a troubling reality in which simplicity and fairness are competing values which require hard choices.

    https://www.gov.uk/government/policies/creating-a-simpler-fairer-tax-system

11. ↑ Official Monster Raving Loony Party Manifesto 2017

    https://www.loonyparty.com/2017-general-election-manicfesto>

12. ↑ PCRT is not in fact guidance: it is mandatory
13. ↑ Professional Conduct in Relation to Taxation (2019), Forward.

    https://www.tax.org.uk/professional-standards/professional-rules/professional-conduct-relation-taxation

    The second sentence is an improvement on the common form that guidance on legal issues “does not constitute legal advice”. That seems an idiosyncratic use of the word “advice"”; but for the meaning of “advice” see Tax adviser
14. ↑ For instance, the Law Society likewise issue a disclaimer for their Practice Notes: The standard form is:

    “While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.”

15. ↑ The text of earlier editions is available on https://www.foreigndomiciliaries.co.uk