[lac-discuss-en] Final Consideration - Member of ALAC Election (Part 2)
silvia.vivanco at icann.org
silvia.vivanco at icann.org
Thu Aug 16 13:12:12 UTC 2012
[[--Translated text (es -> en)--]]
Subject: Re: Final Consideration - Member of ALAC Election (Part 2)
From: silvia.vivanco at icann.org
Dear Jose,
Please see below the ENGLISH TRANSLATION OF THE UNOFFICIAL DOCUMENT.
We will send it to the IN list Shortly.
PART 2
Two concepts are confused: principal residence and domicile. The Chilean Legislation and jurisprudence Have Clarified These concepts.
Article 59 of the Chilean Civil Code defines domicile and (not residency) and define residency as one of the components of domicile. The other element of domicile is the intent to reside in the place (residency).
"Home Consists of residency, With The intent, actual or Presumed To Remain in the place. Divided in Political and civil."
The Chilean Supreme Court Jurisprudence (Supreme Court 24 December 1962, R., t 59, section 1, p 478) has Issued an review about the issue.See page 231: ) Stating:
"1. Domicile, residency, room or place of dwelling.
a) It is not possible to confuse the elements of domicile and residency, the First, According To the Civil Code, Consists of residency, current or Presumed To Remain With The intent in it, it Constitutes a juridical category defined by the law well, Which points out ITS elements. On the other hand, residency is a de facto relationship, Which in Absence of a legal definition, Shall be Understood in a natural sense of the word and Obvious, as an action and effect to reside, in other words, the Fact of Being in Determined to place.
In C Conception, April 28, 1964, R, t 61, sec 4, pg. 289 Has Been Established the Following:
b) In civil law, domicile is the seat of a juridical person and residence and room result in a link Between the person and the place Where the person reside, ordinarily or accidentally ".
2) Tax law of the United Kingdom
The Legislation Which deals with tax issues in the United Kingdom (Scotland Which is part of) clear and express también in Distinguishing Between domicile and residency.
Regarding residency it says:
"2.2 UK residence
There are Many Different Factors Which will determine Whether you are resident in the UK. With one exception (Explained in the next paragraph), it is not simply a question of the number of days you are Physically present in the UK During's tax year, although this is an Important consideration.
The only occasion when to the number of days That You are Physically present in the UK will determine your residence status is when to you are here for 183 days or more During's tax year. If you are here for 183 days or more in a tax year, you are resident in the UK. There are no exceptions to this.
You can Also be resident in the UK if you are present here for FEWER than 183 days in a tax year. This will depend on how long and how Often you are here, the purpose and pattern of your Presence and your connections to the UK. These might include the location of your family, your property, your work life and your social connections. "
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
"3.2 What does ordinary residence mean?
Ordinary residence is Different from 'residence'. The word 'ordinary' Indicates That your residence in the UK is typical for you and not casual. It is Important not to confuse ordinary residence with domicile (see part 4).
If you Have Always Lived in the UK ordinarily resident Then You are here. When you come to the UK you do not Have to intendant To Remain Permanently in the UK in order to indefinitely or be ordinarily resident here. It is enough That your residence has all the Following attributes.
* Your Presence here have a Settled purpose. This might be for only a limited Period, But you have enough continuity to be Properly Described as Settled. Business, employment and family can all Settled Provide a purpose, But this list is not exhaustive.
* Your Presence in the UK forms part of the Regular and habitual mode of your life for the Time Being. This can include temporary Absences from the UK. For example if you come to live in the UK for three years or more then you will Have Established to regulate and habitual mode of life here from the start.
* You have to eat the UK voluntarily. The Fact That You chose to come to the UK at the request of your employer Rather than seek another job does not make your Presence here involuntary.
The pattern of your Presence, Both in the UK and overseas, is an Important Factor When You Are Deciding if you are ordinarily resident in the UK. You will need to take Also your account Into Reasons for Being in, coming to, or leaving the UK and your lifestyle and habits. Parts 7 and 8 will help You With this, As They Explain the Considerations For Those coming to and leaving the UK ".
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
"4.2 What does domicile mean?
Domicile is generally a matter of law, not of tax law. There are Many Things Which Affect your domicile. Some of the main points That You Should Consider if you are not to be domiciled Claiming in the UK are Shown below:
* You can not be without a domicile.
* You can only have one domicile at a time.
* You are domiciled in the country Normally Where You Have Your permanent home.
* Your domicile will continue Existing Until you acquire a new one.
* Domicile is distinct from Nationality and residence, although Both Can Have an Impact on your domicile.
* The Fact That You register and vote as an overseas elector is not taken Into account Normally Deciding when to whether or not to you are domiciled in the UK.
Any references we make to being 'domiciled in the UK' are references to Being domiciled in Any part of the UK ".
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
"Domiciled here is a technical term With A Meaning.Very roughly (and this is a considerable simplification) an Individual is domiciled in the UK if I was born in the UK or if the UK is permanent historical home, and is not a UK domicile if I was born outside of the UK and does not intendant To Remain permanently. "
http://en.wikipedia.org/wiki/Taxation_in_the_United_Kingdom
"In law, domicile is the status or attribution of Being a permanent resident <http://en.wikipedia.org/wiki/Resident> particularly in a jurisdiction <http://en.wikipedia.org/wiki/Jurisdiction_%28area%29> . A person can domiciled in a jurisdiction Remain Even After They Have left it, if They Have Sufficient links Maintained With That Have jurisdiction or not displayed an intention to leave Permanently (ie, If That person has Moved to a different state, But have not yet Formed an intention to REMAIN there indefinitely). A corporation's place of domicile is equivalent to STI place of incorporation ".
http://en.wikipedia.org/wiki/Domicile_ 28law% 29%
3) Scotland's Legislation
"III.3. The personal statute and Its Aspects With Regards With The civil status (name, domiciled or capacity)
The domicile of a person at the historical moment of birth (origin domicile) is the Same as That of His Father, as long as he / she is a marriage are.[...]
Those older than 16 years old are supposed to keep the domicile origin, UNLESS They opt for a different domicile. To opt for another domicile it is needed Effectively That They reside in a specific jurisdiction, With The Intent to Remain in it indefinitely or permanently. In the moment when to Any of These requirements is missing the norm of the Original domicile is applicable. [...]
The issue of the domicile of a person in a country is Often Determined Regulated by the Scottish Legislation, UNLESS provided for in other way, for example, in an international instrument of Which the United Kingdom is part. [..] "
http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_es.htm # III.3.
Conclusions
According To the Above, the LACRALO Operating Principles state as a requirement, to be LACRALO Before The ALAC representative, "to have Their main residence in places of country clubs of the region".
The Norms Which defines what is Understood by "residency", and Which I we have interpreted (as well as the complementary jurisdiction), use a similar criteria: they Distinguish Between domicile and residency as two distinct and concepts.
THEREFORE, my Understanding Is That Mr.Humberto Carrasco (I like Himself in the LACRALO reaffirms mailist) That I have historical domicile in Chile, although I is not at the moment Residing there. Given That I've said I have the intent to return to Chile to finalize historical doctoral studies, I have a real intent Chile That Permanently home and be ITS main historical place of domicile. That is the place WHERE I have the intent to return, while historical residency, Being Determined in a place, that link Between the person and the place WHERE I inhabits, or ordinarily Accidentally, With Un certain character of permanency, That is more than a mere temporary stay, (to finalize historical doctoral studies) is Scotland.
Following the criteria Established by the Laws applicable to this case, there are two concepts can not be confused Which: residency and domicile. In the case of Mr. Humberto Carrasco We have two countries: Chile and Scotland. The criteria to assign to one of These Countries to domicile, is a legal criteria and is what Has Been Presented above: Mr. Carrasco's domicile is Chile. The criteria to assign to one of Those Countries to residence, is a de facto criteria: Mr.Carrasco is living, or have a place Residing of dwelling with Un certain character of permanency (he wants to finish doctoral studies historical) in the city of Edinburgh, Scotland (I have this in. Stated historical emails: I have never denied Being living in Edinburgh and carrying Doctoral out studies in the University).
And THEREFORE, in compliance with what is provided for in the LACRALO ROPs and According To rule 8 of the ROPs LACRALO That Which requires the Representatives of LACRALO With The ALAC Shall have "Have Their main places of residence in country clubs of the region, and Their Nationalities Must be distinct. Having Into account the analysis to determine what Marshall Performed be Understood by "residency", and all the Laws Being Analyzed considering Those in uniform as Separate two concepts, residence and domicile. This Chairmanship considers That Mr. Humberto Carrasco DOES NOT Comply With The requirements of residency required to be accepted as a valid candidate Within The election process to elect the open LACRALO With The ALAC representative.
Kind regards
Silvia
Silvia Vivanco
Manager, At-Large Regional Affairs
Internet Corporation for Assigned Names and Numbers (ICANN)
Telephone: + 1 (202) 570-7119
Fax: +1 (202) 789-0104
Cell / Mobile: +1 (202) 735-7011
From: JosFrancisco Arce [mailto: josefranciscoarce at gmail.com]
Sent: Wednesday, August 15, 2012 11:07 PM
To: LACRALO Espaol, Silvia Vivanco, ICANN At-Large Staff
Subject: Fwd: Final Consideration - Member of ALAC Election (Part 2)
---------- Forwarded message ----------
From: Maple JosFrancisco <josefranciscoarce at gmail.com<mailto:josefranciscoarce at gmail.com> >
Date: August 15, 2012 17:05
Subject: Final Consideration - Member of ALAC Election (Part 2)
To: LACRALO Espaol <lac-discuss-es at atlarge-lists.icann.org<mailto:lac-discuss-es at atlarge-lists.icann.org> >
It confuses two concepts: principal residence and domicile, the legislaciny Chilean jurisprudence have clarified and demarcated time.
The Article 59 of the Chilean Civil code defines domicile (not residence) and defines residence as one of the components of the home.The other elements of the home is the minimum to stay in it (the residence).
"The home is the residence, accompanied, actual or presumptive, of the minimum to stay in it. Divdese in civil and politician."
The jurisprudence of the Chilean Supreme Court (December 24, 1962 Supreme C, R, t 59, section 1, p 478) has discussed this topic. View Pgina 231: ) Stating:
"1. Home, residence, habitacin, purple.
a) It is possible to confuse the elements of domicile and residence, the first, which according to the civil code is the actual or presumptive acompaada residence of the minimum to stay in it, is a jur valoracin defined by the law indicates that Seala its elements.In contrast, a mere matter residence de facto relationship in the absence of legal definition, must be understood as natural and obvious meaning of the word, as acciny effect of residence, ie the fact of being of seat in a particular location.
In Conception C, April 28, 1964, R, t 61, sec 4, pg. 289 has commented stating:
b) In civil law, domicile is the seat jurdico of a person and residence and habitacin a loop are made between the person and the place where she lives, ordinary or accidentally. "
2) United Kingdom tax sharee'ah
The sharee'ah that is responsible for regulating the tax issue in the United Kingdom (Scotland which is a part) is also expressed in clear distinction between domicile and residence.
On the residence provides:
"2.2 UK residence
There are Many Different Factors Which will determine Whether you are resident in the UK. With one exception (Explained in the next paragraph), it is not simply a question of the number of days you are Physically present in the UK During's tax year, although this is an Important consideration.
The only occasion when to the number of days That You are Physically present in the UK will determine your residence status is when to you are here for 183 days or more During's tax year. If you are here for 183 days or more in a tax year, you are resident in the UK. There are no exceptions to this.
You can Also be resident in the UK if you are present here for FEWER than 183 days in a tax year. This will depend on how long and how Often you are here, the purpose and pattern of your Presence and your connections to the UK. These might include the location of your family, your property, your work life and your social connections. "
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
"3.2 What does ordinary residence mean?
Ordinary residence is Different from 'residence'. The word 'ordinary' Indicates That your residence in the UK is typical for you and not casual. It is Important not to confuse ordinary residence with domicile (see part 4).
If you Have Always Lived in the UK ordinarily resident Then You are here. When you come to the UK you do not Have to intendant To Remain Permanently in the UK in order to indefinitely or be ordinarily resident here. It is enough That your residence has all the Following attributes.
* Your Presence here have a Settled purpose. This might be for only a limited Period, But you have enough continuity to be Properly Described as Settled. Business, employment and family can all Settled Provide a purpose, But this list is not exhaustive.
* Your Presence in the UK forms part of the Regular and habitual mode of your life for the Time Being. This can include temporary Absences from the UK. For example if you come to live in the UK for three years or more then you will Have Established to regulate and habitual mode of life here from the start.
* You have to eat the UK voluntarily. The Fact That You chose to come to the UK at the request of your employer Rather than seek another job does not make your Presence here involuntary.
The pattern of your Presence, Both in the UK and overseas, is an Important Factor When You Are Deciding if you are ordinarily resident in the UK. You will need to take Also your account Into Reasons for Being in, coming to, or leaving the UK and your lifestyle and habits.Parts 7 and 8 will help You With this, As They Explain the Considerations For Those coming to and leaving the UK ".
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
"4.2 What does domicile mean?
Domicile is generally a matter of law, not of tax law. There are Many Things Which Affect your domicile. Some of the main points That You Should Consider if you are not to be domiciled Claiming in the UK are Shown below:
* You can not be without a domicile.
* You can only have one domicile at a time.
* You are domiciled in the country Normally Where You Have Your permanent home.
* Your domicile will continue Existing Until you acquire a new one.
* Domicile is distinct from Nationality and residence, although Both Can Have an Impact on your domicile.
* The Fact That You register and vote as an overseas elector is not taken Into account Normally Deciding when to whether or not to you are domiciled in the UK.
Any references we make to being 'domiciled in the UK' are references to Being domiciled in Any part of the UK ".
http://www.hmrc.gov.uk/cnr/hmrc6.pdf
"Domiciled here is a technical term With A Meaning. Very roughly (and this is a considerable simplification) an Individual is domiciled in the UK if I was born in the UK or if the UK is permanent historical home, and is not a UK domicile if I was born outside of the UK and does not intendant To Remain permanently. "
http://en.wikipedia.org/wiki/Taxation_in_the_United_Kingdom
"In law, domicile is the status or attribution of Being a permanent resident <http://en.wikipedia.org/wiki/Resident> particularly in a jurisdiction <http://en.wikipedia.org/wiki/Jurisdiction_%28area%29> . A person can domiciled in a jurisdiction Remain Even After They Have left it, if They Have Sufficient links Maintained With That Have jurisdiction or not displayed an intention to leave Permanently (ie, If That person has Moved to a different state, But have not yet Formed an intention to REMAIN there indefinitely). A corporation's place of domicile is equivalent to STI place of incorporation ".
http://en.wikipedia.org/wiki/Domicile_ 28law% 29%
3) sharee'ah of Scotland
"III.3.The personal status and relationship issues in the civil status (name, domicile, capacity)
The domicile of a person at the time of his birth (old home) is the same as that of his father, provided that it is a child marriage. [...]
For over 16 years they are still assuming the old home, unless you opt for a different address. To choose a different address must actually reside in the JURISDICTION concerned with intention to remain there indefinitely or permanently. At the time of missing any of these requirements is re-applied the standard of the old home. [...]
The cuestin the domicile of a person in a particular country is usually regulated by the Scottish sharee'ah except disposicin contrary, for example, of an international instrument to which the United Kingdom is a party. [..] "
http://ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_es.htm # III.3.
Conclusions
As expressed, LACRALO Operating Principles require as a condition to be representative of LACRALO to ALAC, "having its principal place of residence in different passes of the region."
The rules that define quse term "residence", to which we must use (ascomo the rest of the sharee'ah acompaada) use a similar approach: distinguish between domicile and residence as two separate and distinct concepts between s.
So my understanding is that Mr. Humberto Carrasco (as he himself affirms in an email to the list of discussion LACRALO) is domiciled in Chile, but he is now residing all, as it has stated its intention to return to Chile to complete her PhD, has a current intention that Chile is home true, fixed, permanent and principal. It's where, every time estausente, it intends to return, while his residence, in the sense of residing, being of a seat in a particular place, the bond between the person and the dwelling place, ordinary or accidentally, with a certain character of permanence, that is, more than just a temporary stay (to finish his doctoral studies) is in Scotland.
That is, following the criteria established by the laws applicable to our case, there are two concepts that should not be confused: residence and domicile. In the situation of Mr. Humberto Carrasco are two countries: Chile and Scotland. The criterion for assigning one of these passes an address, a legal standard and is the one discussed above: the home of Mr. Carrasco is Chile. The criterion for assigning one of these passes a residence, is a standard fact: Mr. Carrasco has been living, resides, has a home with a character of permanence (want to finish her PhD) in the City of Edinburgh, Scotland (aslo said in his e-mails: desconociencontrarse never lived in the city of Edinburgh and be pursuing doctoral studies at the University of the same name).
Therefore, pursuant to the provisions of the Rules of Procedure and observing LACRALO Item 8 LACRALO Operating Principles that require ALAC representatives debern LACRALO to have their "principal residence in different passes the region "and taking into account the analysis performed to determine qudebe constitutes" residence ", all of uniform considered two separate concepts, residence and domicile. The Presidency considers that Mr. Humberto Carrasco NOT meet the residency requirements required to be accepted as a candidate in the election process vlido that is open for the position of representative of LACRALO to ALAC.
Regards
Arce JosFrancisco
President of LACRALO
-
Ab. Arce, Jose Francisco
+ 54 9 351 6788920
_______________________________________________
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