Domicile of Choice for Investor and Companies

January 2017 Archived Article: What is In Your Pocket?

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Acquisition of domicile of choice for lump sum Investor and controlled Companies

FREE BEGINNING - DOMICILE OF ORIGIN

A domicile of origin is the domicile acquired by a person at birth with the same domicile of their father for a legitimate child and for a recognisable illegitimate child such individual will acquire the same domicile of their mother. Thus, a person could have a domicile of origin in a country with which they have very little connection - perhaps even a country in which the individual has never set foot. An individual never loses their domicile of origin. It can be superseded by a domicile of choice or dependence. If either kind of these is abandoned, the domicile of origin revives in effect.

TARGET ACQUISITION - DOMICILE OF CHOICE

This is the domicile acquired by a person over the age of 16 (or who is under that age but married) who goes to live in a foreign country. They must be physically present in that country and must have a fixed and settled intention to live there permanently.

To establish a new domicile of choice in place of his existing domicile (of choice, origin or dependence) an individual must demonstrate that:-

  • They have deliberately and voluntarily ceased to reside in one country (the country of their former domicile) as a matter of fact;
  • They have a final and deliberate intention never to reside there again in the future; and
  • They have a fixed and settled intention to live permanently in the "new" country.

For an individual to dislodge they domicile of origin is a competitive task because of two further rules: 1) the standard proof required to establish a domicile of choice, and 2) if an individual does establish a domicile of choice in another country, and that domicile of choice is abandoned for any reason, their domicile of origin automatically revives.

The domicile of origin then remains their domicile until they have a fixed and settled intention to acquire another domicile of choice.

An individual will lose domicile of choice if and when:

  • They cease to reside in the country of his domicile of choice, and
  • They cease to intend to reside in that country.

It is not necessary for that individual to have a positive intention never to return to that country:

  • Where individual returns to the country of domicile of origin with only a vague and indefinite intention of returning to the country of his domicile of choice, the domicile of origin may revive.
  • Where individual abandoned they domicile of choice, the domicile of origin revives until individual obtains a new domicile of choice.

TIER I. LEARN for keeping proof of your new domicile

In every individual case, the task of proving that a new domicile has been acquired or an existing domicile has changed, falls on the individual concerned. That task varies according to the domicile in question. If an individual seeks to replace his domicile of origin with a domicile of choice, the standard of proof is very high. If, however, a person merely wishes to replace a domicile of choice with another domicile of choice, he only has to do so on "the balance of probabilities". If it is sought to establish that a domicile of dependence has been abandoned, the standard is somewhat lower. Where a person is seeking to establish a new domicile of choice person will have to show that person has a fixed and settled intention to live permanently in another country. Factor indications of an intention to reside permanently in the new country (Permanent Residence) rely on severance of all ties with the old country:

  • They qualify established period of residence in the new country
  • They committed the purchase of the house to establish a Permanent home in the new country
  • They committed disposal of property in the old country to replace the Permanent home in the new country
  • They develop a business in the new country
  • They afforded local education of their children in the new country
  • They obtained Citizenship in the new country.

It is important to note that no one of these factors in isolation is a determinant and that each case will be determined on its own facts.

To cooperate with OECD under the CRS, offshore tax havens have to comply with the following standards:

  1. Become more transparent (for taxation, finance and regulation);
  2. Co-operate better with overseas investigators;
  3. End practices that offer tax breaks to foreigners that are not available to residents.

DOMICILE OF CHOICE – KEEP EYE ON YOUR POCKET

Once a person is an adult he can acquire a new domicile (“domicile of choice”) by moving to a new country with the intention of remaining there permanently. If a domicile of choice is abandoned, it must be displaced by a new domicile of choice, or the domicile of origin revives automatically.

The intention of moving somewhere permanently is an inherent part of acquiring a new domicile of choice. If a person only intends to reside in a country for a fixed period, he lacks the element of intention required to acquire a domicile of choice, however long that fixed period may be.

There are a number of factors individual Investor may look at when considering the question of domicile, to establish a “pattern of living”. These may include factors such as properties owned, ongoing social and family links, the impact of work arrangements, and retirement plans.

There have been various suggestions and consultations on codifying the meaning and effect of domicile. In this context, and if the theme of certainty is to be followed through, it may be time to place the meaning of domicile on the Investor’s agenda.

WE WHERE WHY

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