Domicile: Enquiries into domicile status: Burden and standard of proof
The burden of proving a change of domicile rests with the party that asserts the change. In some circumstances the party asserting a change will be the taxpayer, whether it is their own or their ancestor’s domicile they are alleging has changed. For married women it may be a spouse’s change in domicile that is critical (refer to RDRM22240). In other cases HMRC will be asserting a change; this is most likely in situations where a long-term UK resident individual has a non-UK domicile of origin and HMRC considers that they may have acquired a domicile of choice within the UK.
It is generally easier, in practice, to prove the loss of a domicile of choice than its acquisition. This reflects the adhesive quality of the domicile of origin that usually needs to be placed into abeyance before a domicile of choice can be acquired.
In the absence of indications to the contrary residence creates a presumption of domicile, the strength of which grows with the length of residence. However, residence is not in itself decisive.
A change of domicile is never to be lightly inferred, particularly a change from a domicile of origin to a domicile of choice, which is regarded by the courts as a serious step requiring clear and unequivocal evidence.
The standard of proof in this area is the civil one, on the balance of probabilities, but discharging it requires suitably cogent and convincing evidence.
The precise subject matter of an enquiry will vary from case to case, as will the burden of proof and the evidence required to discharge it. In some situations there will be more than one matter to be proved. For example, an individual may need to prove that he or she has a domicile of origin outside the UK before it becomes necessary for HMRC to prove that the individual has acquired a domicile of choice here. HMRC may have to prove the existence of a domicile of dependence within the UK before an individual has to prove that his or her domicile of origin outside the UK has revived or that he or she has acquired a domicile of choice in another territory.