Claire Proes (appellant) v The Revenue Commissioners (respondents).Case Stated - Domicile of appellant - Whether new domicile of choice acquired - Whether domicile of choice abandoned - Abandonment - Intention to return - Length of time resident - The Constitution, Article 50 - Income Tax Act 1967 (No 6), sections 76, 428 and 430. The High Court (before the President, Mr Justice Costello); judgment delivered 5 June 1997. WHERE there is evidence that a person no longer intended to return to reside permanently in the country where he or she is domiciled, the domicile of choice is thereby abandoned. Unless that intention can be shown there is no abandonment. The High Court so held in allowing the appeal, saying that the appellant had acquired an English domicile of choice which she had not abandoned and accordingly that her Irish domicile of origin had not revived. Bill Shipsey SC for the appellant; Grainne Clohessy BL for the respondents.Mr Justice Costello said that the appellant was assessed by the respondents under section 76(1) of the Income Tax Act 1967 and was found for the purposes of that section to be domiciled in Ireland for the period commencing 1982 to the present. These assessments were appealed by the appellant to the Appeal Commissioners who affirmed the finding of the respondents. The appellant then appealed to the Circuit Court and that finding was again affirmed by the learned Circuit Court judge. On an application by way of case stated the appellant appealed to the High Court under sections 428 and 430 of the 1967 Act on the ground that the determination of the learned trial judge was erroneous in point of law. Mr Justice Costello outlined the backround to the case. He said that the appellant had acquired a domicile of origin in Ireland when she was born in County Cork in 1916. Having left the country as a young woman she took up residence and employment in England and married an Englishman in 1940. She became a British national and resided for the most of her life outside Ireland, living in many different countries until she and her sick husband returned to the UK to live in an apartment in London provided for them by her husband's employer. When in 1982, the appellant's husband died, she had to vacate the apartment. Her two daughters who were married and living in London advised her not to make any hasty decisions and so the appellant returned to Cork and decided to stay at a holiday home which the appellant and her husband had purchased in Kinsale in 1970. The house had not been used much by the appellant and her husband prior to that as their circumstances and her husband's work commitments made it impossible to do so. She decided to stay at the holiday home as it was the only place immediately available to her at the time and in time she found living there quite agreeable. She spent part of each year there and travelled and visted her family in London for the remainder. Her family visited her in Kinsale quite often. The appellant envisaged that when she could no longer look after herself she would return to London and live closer to her daughters. She kept an eye out for a suitable property and finally in mid-1992 the appellant purchased a property in London which required refurbishment. Work commenced in 1993. The appellant told the Circuit Court that that she now considered the Kinsale house to be her permanent home. The learned trial judge determined that the appellant had acquired a domicile of choice in England from at least the date of her marriage in 1940 until 1982. Purchasing the holiday home in 1970 did not affect her domicile. However, since 1982 the appellant had lived in Kinsale and while she undoubtedly intended to return to England at some future date, the question was whether her actions belied her intentions sufficiently to establish that she nevertheless intended to live indefinitely in Cork. The learned Circuit Court judge felt the ten year period was hard to ignore and concluded that the appellant had acquired a domicile of choice in Ireland. Mr Justice Costello considered the reasoning of the learned trial judge and the question of law formulated in the case stated. The question the trial judge posed was whether, having regard to the the evidence and the facts found by him and the submissions of law made thereon, the trial judge was correct in determining that the appellant had acquired a domicle of choice in the State by residing in Kinsale since 1982. Mr Justice Costello outlined the law governing the application as follows: (1) A domicile of origin is obtained at birth and a domicile of choice may be acquired by the combination of residence and intention of permanent or indefinite residence. The old common law rule that a wife acquired a domicile of dependency on marriage ceased to be part of Irish law by virtue of Article 50 of the Constitution. (2) A domicile of choice may be lost by abandonment which will occur when a person ceases to reside in that country and ceases to have an intention to return to it as his or her permanent home. When this occurs either a new domicile of choice is acquired or the domicile of origin revives. (3) Section 76(2) of the 1967 Act places the burden of proof on the person who is seeking to establish that he or she is not domiciled in Ireland. It is for that person to establish that another domicile was not abandoned. (4) When considering a case stated a court should not overturn the findings of a trial judge unless there is no evidence to support the findings. If the conclusions are such that no reasonable judge could so conclude, then they should be set aside. Where a judge is wrong in law the conclusions should be set aside. (5) If the evidence supports varying conclusions the conclusions of a trial judge should not be upset unless no reasonable judge could arrive at them.Mr Justice Costello said that the question the trial judge had posed was whether the appellant had acquired a new domicile of choice in Ireland by taking up residence in 1982. He had concluded that she had. The case stated asked the High Court to determine if he was correct in so concluding. Mr Justice Costello said that the trial judge erred in law in the question he thought he was required to answer. The question was whether the appellant had abandoned her English domicile of choice by (a) residing here and (b) deciding not to return to live permanently in England. If so her Irish domicile of choice would revive. Mr Justice Costello gave his reasons as follows: The trial judge should have asked whether the appellant by ceasing to reside in England and residing in Ireland and ceasing to have an intention to return to England as her permanent home had abandoned her English domicile. No consideration was given to the compelling evidence that no intention to abandon her domicile of choice could be inferred from the facts.Mr Justice Costello said that in 1982 the appellant had decided to stay at the house in Kinsale because she had no where else to go, being obliged to vacate her London apartment and was advised by her family not to make any hasty decisions. Therefore, in 1982 she had not decided to cease residing permanently in England. She envisaged returning to England when she got older and looked for a suitable property finally purchasing in 1992. The inference from these facts, Mr Justice Costello concluded, was that the appellant never ceased to have an intention to reside permanently in England. Finally, Mr Justice Costello considered the issue raised as to when the appellant had abandoned her domicile of choice. It had been determined by the Revenue Commissioners that this occured in 1982. The learned trial judge had relied on the length of her residence in Kinsale to establish the acquisition of a new domicile of choice. However, this was not consistent with an acceptance of the conclusions of the respondents. Her intention to return to London was not so vague as to justify the conclusion that she had abandoned her domicile of choice. Indeed, her acquisition of a property indicated a contrary intention.Mr Justice Costello answered the question posed by saying that the learned trial judge erred in law in determining that the appellant had acquired a domicile of choice in the State; she had acquired an English domicile of choice which she had not abandoned and accordingly at the relevant times her Irish domicile of origin had not revived. Solicitors: Mason, Hayes & Curran (Dublin) for the appellant; Francis Cooke (Dublin Castle) for the respondents.Miriam ReillyBarrister