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Deemed Domicile: Inheritance tax

As many will know, domicile (whether it be as a matter of common law or whether it be deemed through statute) is an incredibly important concept for inheritance tax purposes. A person with a domicile in the UK is subject to inheritance tax on their worldwide assets. A person with a foreign domicile is subjec to inheritance on their UK situs assets. Given this, individuals who lived in the UK for many years attempted to argue they did not acquire a domicile in the UK as they did not intend to reside there permanently. 
To prevent individuals from making this argument, the UK government introduced rules to deem a person domiciled in the UK provided certain conditions were met. 
Whilst there are deeming rules for income tax and capital gains tax purposes as well, here I will focus on the rules for inheritance tax purposes. These rules are found in section 267 of the Inheritance Tax Act 1984 (“IHTA 1984“). There are three different rules: the 3-year rule, the formerly domiciled resident rule, and the 15-year /long-term residents rule. 

The 3-year rule (section 267(1)(a) IHTA 1984)

A person not domiciled in the United Kingdom at any time (in this section referred to as “the relevant time”) shall be treated for the purposes of this Act as domiciled in the United Kingdom (and not elsewhere) at the relevant time if he was domiciled in the United Kingdom within the three years immediately preceding the relevant time.

This rule is pretty self-explanatory, but in the wider context of domicile enquiries it raises an important consideration. If an individual is going to rely on not coming within this rule, they will need to make sure that they can show that they, for example, acquired a domicile of choice in a country outside of the UK more than three years ago. Therefore, in drafting statements on domicile, to provide evidence of a domicile of choice, they will want to specify when they formed an intention to reside elsewhere. 

The formerly domicile resident rule (section 267(1)(aa) IHTA 1984)

A person not domiciled in the United Kingdom at any time (in this section referred to as “the relevant time”) shall be treated for the purposes of this Act as domiciled in the United Kingdom (and not elsewhere) at the relevant time if he is a formerly domiciled resident for the tax year in which the relevant time falls (“the relevant tax year”). 

The definition of “formerly domiciled residen”t is found in section 272 IHTA 1984: 

     “formerly domiciled resident”, in relation to a tax year, means a person–
(a) who was born in the United Kingdom,
(b) whose domicile of origin was in the United Kingdom,
(c) who was resident in the United Kingdom for that tax year, and
(d) who was resident in the United Kingdom for at least one of the two tax year
​                immediately preceding that tax year;

The domicile start date for formerly domiciled residents is 6 April in the 2nd year of residence. The domicile end date is 6 April in the first year of non-residence.

This is the biggest change to deemed domicile. 

The formerly domiciled resident rules have particular application in relation to certain inheritance tax planning. Most importantly, 

The 15-year / long-resident rule (section 267(1)(b) IHTA 1984)

A person not domiciled in the United Kingdom at any time (in this section referred to as “the relevant time”) shall be treated for the purposes of this Act as domiciled in the United Kingdom (and not elsewhere) at the relevant time if he was resident in the United Kingdom— (i) for at least fifteen of the twenty tax years immediately preceding the relevant tax year, and (ii) for at least one of the four tax years ending with the relevant tax year.

In establishing whether a person was resident in the UK for any tax year, it shall be determined in the same way as residence is determined for income tax purposes.

The inheritance tax 15-year rule starts on 6 April in the tax year after the 15-year test is satisfied.

Deemed Domicile Spouse Rule (sections 267ZA and 267ZB IHTA 1984)

Provided certain conditions are met it is possible to elect to be treated as deemed domiciled. This is primarily done in the contexts of spouses to maximise the spouse exemption. 

Take Advice

If you or a client has concerns about their domicile, whether they have acquired one or whether they may still be deemed domiciled, then I can recommend taking advice on the topic. Please feel free to contact me here or my clerks here.

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