Overseas Work

Working overseas is a very convenient phrase when seen from the context of the United Kingdom, because it means working anywhere except within the jurisdiction of the UK.

In most other countries this description does not work, imagine for example Switzerland which is landlocked. To go "overseas" from that country one has to travel quite a long way.

Clearly this area of tax is very complicated and even now has cases that continue. The CURRENT most well known being Robert Gaines-Cooper (as at March 2010).

I think the best I can immediately say is this: without a statutory definition of non residence, it is impossible to take one person's case and to claim that it is the same as another and that therefore that second person can rest assured they are either resident or non resident. Even when some assurance is apparent, HMRC can come back later for another (retrospective) bite of the cherry, by claiming that all they are doing is clarifying the existing law. Intentions change, facts become vague when what was planned is not carried out exactly or even if they were but some over-riding principle is called in to play (see next para).

My personal view is that HMRC have and continue to use the idea of a person never having made a departure as their most successful legal strategy. I do not think the professional texts or indeed HMRC texts really have much to say about this, which may be why it can be seen by me as an area of weakness or vulnerability in some planning.  In the case of RGC above I think that what is going on is unconscionable; they have had 30 years to challenge him, it's far too late, and throwing out the guide book to boot. Bad Tax. We have a human right to certainty.

The idea of non residence is just that, a concept. This allows the law to stay up to date and maintain its balance against those who would flout it. "Flout it"? It's not so much a question of flouting the law as taking reality along with it. Statute law is fixed whereas equitable law (case law) is not. Statute law has to be changed by parliament whereas equitable law (meaning case law) is decided by our judges independent of parliament, though with reference to both it's laws and reasons therefore by reference to what was said at the time (Hansard).

Equity has been likened to John Wayne, it does what is right at the time. Statute law is inflexible and that leads to inequity (which is where equity comes in) and then we would be back where we started. I think this is why parliament is not so quick to enact a new statute - really in the same way we do not have a written constitution. In both instances, a written set of rules sets a target for all those who so wish, to apply their resources to breaking while having the appearance of not doing so. By this I mean adherence to the letter of the law while shattering any spirit it may once have had. The only example I can think of in recent times where HMRC has explicitly stated that if the spirit of some rules is broken, then they will act is the case of QROPS (google it).

So. If you have read this far and would like a personal considered approach without having to go to the (shall we say) less personal big practices, then please contact me.