IHTM10685 - Investigating supplementary form: D31- Domicile outside the United Kingdom
Where a claim that the transferor was domiciled outside the UK at the date of the chargeable event or, in the case of a settlement the settlor was domiciled outside the UK on the date the settlement was set up, form D31 should be completed to provide additional information. This form is similar to form IHT401 (IHTM13000) of the IHT400.
A brief history of the life of the transferor’s, or settlor’s life is required to show the basis on which they should be considered to domicile outside the UK. If the transferor/settlor was female, and had married at any time on or before 1st January 1974, a history of the life of the transferor’s, or settlor’s husband (or husbands) while she was married and up until 1st January 1974 should be included.
Even if a person is domiciled outside the UK under general law, two special rules apply to those who have emigrated from the UK, some formerly UK domiciled persons returning to the UK or to those who have been resident here for many years (IHTA84/S267). If either rule applies then, in most cases, we treat them as domiciled within the UK for the purposes of IHT, i.e. domicile includes deemed domicile. For all other purposes, e.g. succession, the general law applies.
The “three year” (IHTA84/S267(1) (a)) rule - s.267(1)(a): For the rule to apply they must have been domiciled in the UK both on or after 10 December 1974 and within three calendar years before the relevant event, e.g. gift, death.
The “formerly domiciled resident” (IHTA84/267(1)(aa)): For the rule to apply, they must have been born in the UK, with a domicile of origin in the UK, were resident (for income tax purposes) in the UK in the “relevant tax year” and were resident (for income tax purposes) in the UK for at least one of the two tax years immediately preceding the “relevant tax year”. The “relevant tax year” is the period 6 April – 5 April, ending with the year of assessment in which the relevant event falls.
The “15 out of 20” and “1 out of 4” (IHTA84/S267(1)(b)(i) and (ii)) rule - S267(1)(b)(i): For the rule to apply they must have been resident (for Income Tax purposes) in the UK on or after 10 December 1974 and in not less than 15 out of the 20 tax years immediately preceding the relevant tax year, i.e. 6 April - 5 April, ending with the year of assessment in which the relevant event falls, and at least 1 of the 4 tax years ending with the relevant tax year.
If someone who had been resident and domiciled in England throughout his life leaves for good on 1 January 1998 and settles in Spain permanently, under general law he acquires a domicile of choice in Spain. On 2 January 2001, he makes a gift of £300,000 from his Spanish bank account to trustees of a discretionary settlement in Gibraltar. Ordinarily, no transfer of value arises as this would be a gift of excluded property.
Furthermore, the first rule cannot apply because the gift occurred more than 3 calendar years after his emigration. Nor can the second rule apply since he is not resident for income tax purposes in either the relevant tax year nor at least one of the two tax years immediately preceding that year. However, the third rule is in point because we are concerned with tax years and to avoid this rule he must have been non-resident for 6 tax years in the 20- year period, which ends with the year 99/00 and non-resident in the four tax years ending with the year 00/01.
In particular he will have been resident in the UK for Income Tax year 97/98 because he was here for more than 6 months. So, he was non-resident in 98/99, 99/00 and 00/01 only. He was resident in at least 15 out of the 20 tax years up to and including Accordingly, the chargeable transfer will be caught by the 17/20 rule. If the gift were made on or after the 6 April 2001 then neither rule would apply.
We follow any residency rulings made by CNR with one qualification. For the tax years before 6 April 1993, someone was considered to be resident in the UK if they set foot here during the year and had a dwelling house in the UK, which was available for their use. However, availability of a dwelling house was ignored for the purposes of our 17/20 rule (IHTA84/S267(4)). In the absence of any information, you should assume that residency rulings for Income Tax made prior to 93/94 were not made on the basis of this rule alone.
However, there are exceptions;
- where domicile does not include deemed domicile,
when considering the double taxation agreements (IHTM27161) with France, Italy, India or Pakistan
- when deciding whether savings products in the Channel Islands or the Isle of Man and (in cases where domicile is still relevant)
- in deciding whether government securities, are excluded property (IHTM27270)
- when deciding whether property settled before 10 December 1974 is excluded property (IHTM27212).
If there is any doubt as to the correct domicile of the transfer or settlor, file forwarded to Technical for further consideration.