Commissioners of Inland Revenue v Bullock
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buckley,Lord Justice Roskill,Lord Justice Goff,LORD JUSTICE ROSKILL,LORD JUSTICE BUCKLEY |
| Judgment Date | 25 June 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0625-2 |
| Date | 25 June 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0625-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal From The High Court of Justice Chancery Division
(Mr. Justice Brightman)
Lord Justice Buckley
Lord Justice Roskill
and
Lord Justice Goff
Mr. A.L. Price Q.C. and Mr. D.J. Ritchie (instructed by Messrs. Turner & Evans, Solicitors, Radlett) appeared on behalf of the Respondent (Appellant).
Mr. A.J. Balcombe Q.C. and Mr. B.J. Davenport (instructed by The Solicitor of Inland Revenue London) appeared on behalf of the Appellants (Respondents).
This is an appeal from a judgment of Mr. Justice Brightman delivered on 10th July 1975 when, allowing an appeal from a decision of the Commissioners for the Special purposes of the Income Tax Acts, the learned Judge declared that the appellant, Group Captain Bullock, had acquired an English domicil of choice and was so domiciled for the fiscal years 1971/72 and 1972/73. The facts of the case, as found by the Commissioners, are set out in paragraph 5 of the Case Stated and I need not re-state them in full. For the purposes of this judgment I need only mention the salient facts and certain important findings made by the Commissioners.
The appellant was born in Halifax, Nova Scotia, in August 1910, being one of the third generation born in that province. His domicil of origin was in Nova Scotia. Having been unable to obtain a commission in the Canadian Air Force, the appellant joined the Royal Air Force in 1932. He served in the Royal Air Force until 1959, when he retired with the rank of Group Captain. In 1946 he married an English wife, whose home was in England. From 1959 to 1961 the appellant was in civilian employment in England. His father died in 1960, when the appellant inherited sufficient money to enable him to retire, which he did in 1961. Before his marriage it was the appellant's intention to resign his commission at the end of the war and return to Canada, but his marriage to his English wife altered this. The appellant and his wife visited Canada on a number of occasions after their marriage. At first he hoped to persuade her that they should live in Canada after his retirement. Unfortunately she did not care for this prospect. The Commissioners found as follows (Paragraph 5 (7)): "He gradually realised that she did not take to the idea of living in Canada after his retirement, but hecontinued to hope that she might change her mind when the time came". The appellant retired in 1961. The Commissioners found as follows (Paragraph 5 (9)) a "Had his wife been willing to do so the respondent could (and would) then have retired to Canada. Naturally he was not prepared to insist that she should do so and he felt he had no option but to defer to her wishes… By 1966 the Respondent had given up any idea of returning to Canada to live during the lifetime of his wife. He thought that he had no option but to defer to her wishes, although if she changed her mind he would pack up fast and take the first available boat".
In 1961 or 1962 the appellant's wife bought a site in Lyme Regis on which she built a bungalow, in which she and the appellant have since lived.
On 8th April 1966 the appellant executed a will, prepared in 1960 by a lawyer in Halifax, whereby he appointed a Nova Scotian corporation to be his executor. That will contained a declaration in the following terms: "I hereby declare that my domicile is and continues to be the Province of Nova Scotia, Dominion of Canada, where I was born and brought up, to which Province I intend to return and remain permanently upon my wife's death". By that will the appellant left his estate to his wife, but if she should pre-decease him then half was to go to a cousin of his and the other half equally between the University of King's College, Halifax, and the Congregation of All Saints' Cathedral, Halifax, to be used partly for establishing one or more scholarships and a memorial to the appellant's great grandfather, who had been Dean of the Diocese of Nova Scotia. The will contained a declaration that it should be read, construed and take effect in accordance with the law of Nova Scotia.The appellant had made no English will and all his assets were in Canada. He kept the property which he had inherited upon his father's death invested in Canada. His wife had some means of her own, but their joint means in the United Kingdom, which no doubt included the appellant's pension, were not always sufficient for their needs, and occasionally he drew upon his Canadian capital or income, in particular for holidays abroad.
The Commissioners accepted the evidence of the appellant's wife to the following effect: "She had always regarded her husband as Canadian and realised that he wanted desperately to live in Canada. He had not given up hope of persuading her to reside there with him, but the difficulty was that her impression of Canada formed on their visits had been disappointing". She had made an English will, and also a will governed by the law of Canada.
Notwithstanding several invitations to do so, the appellant refused to take part in local government in England, and in fact he never voted in local or Parliamentary elections, holding the opinion that as a Canadian citizen it would be wrong for him to take part in either local or national affairs. The appellant has retained his Canadian passport and has never considered obtaining a United Kingdom one. He maintained contact with his Canadian relatives and friends and was a regular reader of a Toronto newspaper.
The decision of the Commissioners (Case, paragraph 9) contains the following findings: "During the period 1947 to 1961 the appellant and his wife visited Canada on a number of occasions. Mrs. Bullock however did not take to the idea of living in Canada, for the following reasons. First, her parents were still alive, residing in England. Second, she did not relish the prospect of living in the old family house in Halifax, whilethe appellant's father resided there. Third, she found the Canadian climate too cold in winter. Fourth, she preferred the English scene to the Canadian. The first two objections ceased to obtain after 1961; in 1960 the appellant's father died, and in 1961 her own father died, her mother having died some years earlier. There remained the last two objections. For a while the appellant was hopeful of persuading his wife to overcome her objections, but from about 1956 onwards he realised that it was too much to ask of her, and so he deferred to her wishes, having (in his own words) no option. Nevertheless his intention persisted, and should his wife change her mind, or unhappily predecease him, he would (again to use his own words) pack up as fast as he could and get on the first boat to Canada".
The Commissioners held that the appellant was not domiciled in the United Kingdom during the years 1971/72 and 1972/73. On appeal the learned Judge reversed this decision, declaring that the respondent had acquired an English domicil of choice and was so domiciled in each of these years. The appellant appeals from that decision. Since, in cases of this kind, there is no appeal from the Commissioners on findings of fact, the question for decision is whether upon the facts as found the Commissioners were right in law in holding as they did or whether upon those facts the learned Judge was right in law in holding as he did.
The solution depends upon the question whether the appellant at any time lost his domicile of origin in Nova Scotia by acquiring a domicile of choice in England.
As long ago as 1865 Lord Justice Turner said in ( Joop v. Wood 4 de Gex & Smale 616 at 621) that nothing was better settled with reference to the law of domicile than that the domicile can be changed only animo et facto; that is to say, byintention as well as action. The necessary act is that of taking up residence in some country other than the country of the domicil of origin. There is no dispute in the present case about the appellant having taken up residence in England. What his intention was in doing so is a question of fact. What we have to determine is whether that intention was such as to clothe his residence in England with the necessary quality to result in his having adopted a domicile of choice in England.
The effect upon a man of a change of domicile is to make the law of his new domicile his personal law in place of the law of his previous domicile. The intention which has to be sought, however, is not a conscious intention to achieve this result. I think it would be unusual for anyone who changed his domicile to have done so consciously or primarily for the purpose of subjecting himself to the legal system of his new country. The intention which must be sought is ax intention on the part of the person concerned to make the new country his permanent home.
In Wnicker v. Hume (1858) 7 House of Lorls Cases, 124 at 160, Lord Cranworth said: "By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it".
In Lord v. Colvin (1859) 4 Drewry 366 at 376, Vice-Chancellor Kindersleysaid: "I would venture to suggest that the definition of an acquired domicil might stand thus: that place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent some, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to inducehim to adopt some other permanent home".
When that case reached the House of Lords...
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