CG64545 - Private residence relief: two or more residences: no valid notice made

Where an individual has two or more residences within the meaning of s222 TCGA92 it is not mandatory for that individual to make a notice nominating which is to be treated as the only or main residence.

CG64470 explains that an individual must have a legal or equitable interest in the residence for it to be a residence within the meaning of s222 TCGA92. An exception to this treatment can apply prior to October 1994 where the individual occupies a residence under a licence. If these circumstances apply see the October 1994 of Tax Bulletin or earlier versions of this manual.

We cannot insist that an individual is bound by an invalid notice. Similarly, a revised notice cannot be substituted for the original invalid notice if the time limit has expired and an invalid notice cannot be varied. If the original time limit for making a notice has not expired a ‘new’ notice can be made.

Where a notice is not made, or an invalid notice is made, the residence which attracts relief is the dwelling-house which is the main residence as a matter of fact.

All of the facts and circumstances of the particular case must be considered in order to conclude which residence is the main residence.

In practice the main residence is not necessarily the residence where the individual spends the majority of their time, although it commonly will be. This question was considered in the case of Frost v Feltham (55TC10) and the High Court decision in this case sets out a useful summary of the criteria to be applied. Nourse J comments in the decision,

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In general, we are interested in evidence of changes the individual may have made to accommodate them living at the dwelling-house as their main residence.

It should also be borne in mind that dwelling-houses can be held for many years and their use by the individual may change over time.

The following list of points to consider is not exhaustive or intended as a checklist but may be useful in establishing whether a property is a residence and then whether it is the main residence:

• For each dwelling-house, what is the is the timeline of events from the date of acquisition until the date of disposal? When was the dwelling-house first used and last used as a residence? It may be necessary to look at periods before the first use or after the last use e.g. where the individual was living at someone else’s property.
• If the individual is married or in a civil partnership, where did the family spend its time? Spouses or civil partners who are living together can only have one main residence between them.
• Are there any dwelling-houses owned solely by the spouse or civil partner that also need to be considered?
• Is the size and location of the dwelling-house suitable for it to be the main home of the family according to their size and lifestyle?
  • How many rooms are there?
  • How was it furnished?
  • If the individual has children, where did they go to school?
  • Where was the individual’s place of work? Where was their spouse or civil partner’s place of work?
  • Where was the individual registered with a doctor / dentist?
• At which residence was the individual and their spouse, or civil partner, registered to vote?
• Which address was used for correspondence?
  • Banks & Building Societies
  • Credit cards
  • Utility bills
  • HMRC and other Government departments
• At which address was the individual’s car registered and insured?
• Which address was the main residence for council tax? Were there any council tax exemptions in place, such as for the dwelling-house being uninhabitable or a second residence?
• Does the utility bill usage suggest that it was occupied as the main residence of the individual and their family?

You need to ensure you have sufficient facts to get a clear picture of events. The extent and detail of the fact gathering required will be determined by specifics of the case.