FTT: HMRC don't need to disclose affairs with foreign tax authorities

FTT Ruling

In a dispute between a British taxpayer and the HMRC, the First- tier Tax Tribunal (FTT) has ruled that HMRC are not required to disclose information from discussions with a foreign tax authority.

The ruling by the FTT on the Kevin McCabe v HMRC [2019] TC7145 case, where Mr. McCabe was trying to establish proof of residency in Belgium to avoid the payment of UK taxes, stated that the documents relating to a “mutual agreement procedure” (MAP) with the Belgium Tax authorities did not need to be submitted.

MAP was introduced to improve the dispute resolution process and to enhance the timescales when processing and completing the administration requirements under a tax treaty process.

Mr. McCabe was claiming to be solely a Belgium tax resident, although he had spent considerable time in the UK, and was using the tiebreaker test in the UK-Belgium double tax treaty in an attempt to prove his case. By requesting the paperwork from both HMRC and the Belgium tax authorities, his aim was to uncover alleged contradictions in HMRC’s justifications.

However, notes from the case show that both HMRC and the Belgian tax authorities objected to the documents being disclosed and the FTT ruled that although the information may be relevant, it was deemed to be of low importance.

Mr. McCabe’s application for the documents was then refused on the grounds that both HMRC and the Belgian tax authorities had detailed a good, but not infallible, case for the documents not to be released.

This may be a frustrating ruling for those who have complicated tax residence positions brought about by spending time in more than one jurisdiction due to work and personal obligations, and who feel that their tax position is not being properly considered by the two relevant tax jurisdictions under the applicable double taxation agreement. It will be interesting to see if the taxpayer in this case appeals the decision and we will watch further developments with interest.


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