Domicile matters

Contrary to those who claim that domicile is some strange beast grafted onto the UK tax system,. it\’s actually quite an important part of the Common Law:

But at the heart of last week’s hearing is the issue of where the Turkish Cypriot tycoon was domiciled when he died.

Erkin and his family insist that Ramadan Guney’s heart always remained in Northern Cyprus. If that argument succeeds, Ms Holliday is likely to go without a penny.

At an earlier hearing in April last year, Judge Lindsey Kushner QC handed Ms Holliday a crucial victory when she ruled that Mr Guney’s emotional attachment to the cemetery, which he bought in 1985, his choice of burial place and his love for their son, meant he had made England his home.

It ain\’t just about income tax you know…..

Richard Murphy\’s campaign against this is therefore part of a pattern. He really does seem to hate the way in which the Common Law has built up a series of ways of doing and deciding things. He campaigns against tax avoidance: and yet the Common Law states that everyone has the right so as to organise their affairs to minimise their tax bill. He campaigns for a \”general anti-avoidance principle\” which is entirely at odds with the Common Law point that the law is indeed the law. Do what it says and you\’re fine: peeps can\’t come along later and say \”ah, well, yes, but that\’s not what we meant\”.

I\’ve even seen him implying that he likes retrospective laws. Again contrary to the Common Law idea that you can only be charged, tried and punished for something which was in fact a crime when you did it. (One example of this is his insistence that banks should only be allowed to carry forward losses for a couple of years, rather than until they\’re exhausted by being offset against profits. This is of course to change the law after the losses have happened.)

Now I agree that there are other ways of doing this, plenty of countries don\’t have or haven\’t had this slow accretion of logic and legal rulings for the last 800/900 years. But of the various ways in which this necessary task of building a legal system can be done I think we rather got this one right.

And one of the reasons I think we did get it right was that one of the guiding principles underlying it all is that the law is there not just to enable the rulers to rule as they would wish. But to protect the citizenry and the rights of the citizenry against rulers who would rule as they would wish.

We actually had at least one Civil War over this very point. Plus a Revolution (1688 might be better described as a coup d\’etat though).

Which leads to what I think is a very amusing point. Murphy\’s view of the State is essentially that of Charles I. That State should be able to get on with whatever the State wants to get on with and bugger the rights of the individual. Or indeed, the settled habits of the law. He\’s a Royalist, even if a Republican.

Which is a very strange set of views for a Quaker to hold really.

6 thoughts on “Domicile matters”

  1. When it comes to the chargeability to tax, the relevance of domicile is derived from statute and not the common law. As, indeed, are the laws concerning bank losses.

    You appear to be confusing the common law with the rule of law.

    Tim adds> True to an extent: but statute is often simply the encoding of decisions already arrived at through Common Law.

  2. “statute is often simply the encoding of decisions already arrived at through Common Law.”

    Or to override it when wanting to send a message.

  3. One of the best indicators that the common law does have it right is the long list of pecksniffs, prodnoses, busybodies and puritannical crusaders who wish it changed or abolished.

  4. The rules for domicile for tax are different from those for testamentary purposes, which is what this dispute is about.

  5. 1688 might be better described as a coup d’etat though

    Invasion backed up by a nice bit of spin (“the freedoms of England” indeed). Dutch head of state “borrows” money from the Dutch govt and a few German relatives, lands an army just down the road from where I grew up and then rewrote the history books to make it look like it was all a domestic affair and nothing to do with his war against France at all.

    Beyond that, um, yes, can’t fault your logic on the actual post, unless you’re going to try to abolish common law, or simply even codify it, which I haven’t seen proposed by anyone sane for awhile.

    I’d like to codify the law, but we’d need to employ so many people to do it it’s not cost effective 🙁

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