UK: UK Tax Residence - Consultation Results On New Statutory Definition

OVERVIEW

The Government's proposed statutory test for UK tax residence, now intended to be effective from 6 April 2013, was first published in a 17 June 2011 consultation document. A year later, on 22 June 2012, the Government has published the consultation results ("the consultation results document") clarifying how the new statutory residence test will work, specifying some additional issues for consultation and setting out draft legislation.

In this briefing we summarise the proposed statutory residence test as now adjusted by the consultation results document. We indicate in italics the differences from the originally proposed statutory residence test.

Key changes set out in the consultation results document to the originally proposed statutory residence test are:

• individuals leaving the UK will be able to return for up to 15 days (up from nine days) per tax year consistently with becoming non-UK resident
• the Government is consulting on (a) increasing from 20 to 25 the number of days per tax year which a person leaving the UK under a full-time contract may work in the UK consistent with becoming non-UK tax resident (b) increasing from three to five the hours which can be worked in a day before it counts as a "working day"
• for individuals coming to work in the UK the Government is consulting on increasing from nine months to 12 months the continuous period of work required for automatic UK tax residence
• a person's UK residence status under the new statutory residence test may depend on whether they are an "arriver" in, or "leaver" from, the UK. This in turn depends on a person's UK residence status under the old residence rules in the three years before 2013/14. Given the complexity of the old rules this will be difficult to determine in some cases. The Government therefore proposes a transitional rule under which the new residence test may be applied before 6/4/2013, provided the taxpayer so elects, for the purpose only of determining whether a person is an arriver or a leaver.
• at the moment, where "day-counting" is relevant to a person's residence status, the number of midnights spent in the UK is the relevant criterion. The Government is consulting on introducing an additional test applicable only to individuals present in the UK for a large number of days without ever being in the UK at midnight.
• up to 60 days' presence in the UK may be permitted for specified "exceptional circumstances" without being counted towards an individual's UK residence status
• a connection factor relevant in some circumstances to UK residence status is having a UK resident minor child. However, under the revised proposals this factor is ignored if the individual spends under 61 days with the child in the UK. Moreover, the child is treated as non-UK resident in this context if he/she is in full-time education in the UK and spends under 21 days in the UK outside term time. This provides greater flexibility than the original proposal.
• another connection factor relevant in some cases is having an accommodation tie in the UK. In the revised residence test the notion of "accessible accommodation" is replaced by the concept of "a place to live" in the UK" , available to be used for a continuous period of at least 91 days in the tax year in question and in which the individual spends at least one night in the tax year. This test provides greater clarity than in the original proposal.
• the concept of ordinary residence will be abolished except in relation to overseas workday relief ("OWR"). OWR relief enables individuals who are UK resident but not ordinarily resident to pay tax on the remittance basis for foreign employment duties where the income is paid by a UK employer. Abolition of ordinary residence in other contexts means, for example, that UK resident and domiciled but non-ordinarily resident individuals who pay tax on the remittance basis on non-UK investment income will no longer be able to use the remittance basis.
• in future OWR will be limited to non-domiciliaries who are non-ordinarily resident. Nor will it be available to individuals who have been resident in the UK in any of the previous three tax years (five years in the original proposal). The Government is also consulting on denying OWR to individuals who are "based" in the UK in circumstances where it is reasonable to assume (based on factors to be outlined in the legislation) that they will continue to be based in the UK for more than two full tax years.

THE NEW STATUTORY RESIDENCE TEST

The proposed test falls into three parts as set out below.

"Automatic overseas tests" (formerly Part A): an individual will be conclusively non- UK resident in a particular tax year¹ if

• he has been non-UK resident in each of the previous three tax years and he is present in the UK for fewer than 46 days (increased from 45 days) in the tax year in question; or
• he was resident in the UK in one or more of the previous three tax years and he was present in the UK for fewer than 16 days in the tax year in question (following the June 2011 consultation this has been increased from fewer than ten days in the tax year); or
• he leaves the UK to carry out full-time work abroad, is present in the UK for fewer than 90 days in the tax year and works for no more than 20 days in the UK in the tax year in question. (The Government is consulting on increasing this to no more than 25 days in the UK in the tax year). A working day requires more than three hours of work (although the Government is consulting on increasing this to more tnan five hours of work); an individual claiming to have worked for under three (or five) hours a day may be required to retain evidence of this.

If a person does not satisfy any of the automatic overseas tests (so as to be conclusively non-UK resident), then go to the automatic residence tests (previously Part B).

Automatic residence tests (previously Part B): an individual will be conclusively UK resident in a particular tax year if

• he is present in the UK for 183 days or more in the tax year
• his only home or homes are in the UK (but ignore a home that is for sale or which is let with the individual living elsewhere); or
• he carries out full-time work in the UK. "Full-time" means at least 35 hours per week for a continuous period of more than nine months (subject to consultation) - ignoring short breaks – with no more than 25% of duties outside the UK during that period. The Government is consulting on increasing the continuous period of full-time work from nine to twelve months.

If an individual does not satisfy any of the automatic overseas tests (so as to be conclusively non-UK resident) or the automatic UK residence tests (so as to be conclusively UK resident) then go to the sufficient ties test (formerly Part C).

"Sufficient ties" test (formerly Part C): under this head an individual's UK residence status depends on (a) how many of the specified "connection factors" apply to him and (b) how many days he spends in the UK in the tax year in question. The greater the number of connection factors that apply to the individual the fewer the number of days he is permitted to be present in the UK without becoming UK resident. Individuals are to be categorised as either "arrivers" or "leavers" by reference to whether or not they have been UK resident in any of the three tax years immediately preceding the tax year in question. It is a deliberate aim of these rules to make it more difficult to be non-UK resident as a "leaver" than as an "arriver".

If a person is an "arriver" (having been non-UK resident in each of the three tax years preceding the tax year in question) the connection factors that have to be taken into account are

• having a UK resident family
• having a place to live in the UK (previously the test referred to having accessible accommodation in the UK)
• having substantive UK employment (including self-employment) for at least 40 days in the tax year; to count, a day must involve more than three hours of work (although the Government is consulting on increasing this to five hours) and
• spending 90 days or more in the UK in either of the two previous tax years.

For "arrivers" the connection factors tie in with the number of says spent in the UK as set out in the table below

Note that the day counting is undertaken by reference only to the tax year in question. There is no concept of considering an average annual number of days in the UK, as happens in certain circumstances at present.

If a person is a "leaver" (having been resident in one or more of the previous three tax years) the relevant connection factors are

• having a UK resident family
• having a place to live in the UK (previously the test referred to having accessible accommodation in the UK)
• having substantive UK employment (including UK employment) for at least 40 days in the tax year
• spending 90 days or more in the UK in each of the previous two tax years
• spending more time in the UK than in any other single country.

Some of these terms are explained in more detail in the "Background" section below.

For "leavers" the connection factors are combined with days spent in the UK to determine residence status as follows

If a person does not satisfy the automatic residence test or the sufficient ties test, he/she is non-UK resident even if he/she does not satisfy the automatic non-UK residence test.

Transitional provisions. A potential difficulty under the original proposal was that in categorising an individual as an "arriver" or a "leaver", residence for all tax years prior to 2013/14 was to have been assessed under the "old" rules – under which it may not be possible to say with certainty whether or not an individual was UK resident. This would have meant that in cases of doubt, individuals wishing to remain non-UK resident would have been well-advised to consider themselves as "leavers" (thus severely restricting their time in the UK) until 2016/17, by which time they would have had the opportunity to accumulate three years of what should be definite non-UK residence under the statutory residence test.

In light of the June 2011 consultation results, however, the Government proposes to enact a transitional rule under which, in deciding whether they are an "arriver" or a "leaver" the individual in question will be able to elect to apply the new residence test. For some individuals this will create greater certainty in planning visits to the UK over the first three years following introduction of the new test. If applicable, the transitional treatment will only be relevant for the purpose of determining a person's "arriver" or "leaver" status in the context of the new residence test from 2013/14 onwards. It will not be relevant in any other context.

BACKGROUND

Current rules on residence

At the moment, unless a person spends 183 days or more in the UK per tax year (when they will definitely be UK resident) a more or less open-ended range of factors is relevant to his UK residence status. These factors include the location of the individual's close family members, his home, his business connections and his social connections, the purpose of visits made to the UK and his nationality, to mention only some of the more obvious factors. HMRC's guidance contained in a document known as HMRC6 (which replaced an earlier document called IR20) is heavily caveated so that in practice in many cases it cannot be relied upon. There are particular difficulties in successfully becoming non-UK resident, other than in a limited range of circumstances. It is for these reasons that over many years solicitors and other tax advisers have been calling for a statutory residence test in order that people leaving and arriving in the UK may do so with a degree of confidence as to the effect on their UK residence status.

Proposed new rules on residence: some definitions

Days of presence in the UK. Under the proposed new statutory residence test, it is necessary to determine the individual's days of presence in the UK. Here the existing rule applies for determining what amounts to a day spent in the UK. Thus, a person will be treated as being in the UK on any day when he is in the UK at midnight at the end of the day. The exception for persons transiting through the UK who are present here at the end of the day but do not undertake activities such as a business meeting substantially unrelated to their transit will continue to apply under the new rules.

In the consultation results document the Government has expressed concern that the "midnight" test could be manipulated by individuals making frequent visits but managing their time so as to avoid being actually present in the UK at midnight. The Government therefore seeks views on introduction of a test to be applicable only to individuals present in the UK on a large number of days without ever being present at midnight on those days. It envisages that the following elements could be relevant in such test (1) number of days the individual sets foot in the UK without being here at midnight (2) number of days on which the individual is in the UK at midnight (3) whether the individual was resident in preceding years and (4) whether he/she has other connection factors with the UK.

Whereas in the original proposal there was no provision for leaving out of account days spent in the UK due to "exceptional circumstances" (such as illness) the Government has now accepted the need for such provision. It therefore proposes to allow up to 60 days of presence to be disregarded where an individual spends days in the UK for reasons beyond their control such as national or local emergencies (war, civil unrest or natural disasters) or sudden or life-threatening illness or injury. This "disregard" will apply for all day counting elements of the proposed new residence test.

Family:One of the sufficient ties (Part C connection) factors applies if the individual in question has a UK resident family. In this context the connection factor applies if the individual's spouse, civil partner or common law equivalent are resident in the UK or any part of it (but ignore a spouse, civil partner or common law equivalent if the individual in question is separated under a court order or separation agreement or where the separation is likely to be permanent) or if the individual's children under 18 are resident in the UK and the individual spends time or lives with them in the UK for all or part of 60 days or more during the tax year. (Under the original proposal the connection factor would have applied even if the 60 days spent by the individual in question with the child had been outside the UK!). A child will not be treated as UK resident if their UK residence is mainly caused by them being at an educational establishment in the UK; this will be the case when the child spends under 20 days in the UK outside term-time. (Under the original proposal a child was "excluded" from being UK resident if he spent no more than 60 days in the UK outside school and his main home was outside the UK. The change to the test in the consultation results document is to enable a child at a day school to be treated as non-UK resident for purposes of the "sufficient ties" test).

Accommodation:a further Part C connection factor relates to the individual having "a place to live" in the UK which is available to be used by them for a continuous period of at least 91 days in a tax year (including gaps of fewer than 16 days between periods in the tax year in which a particular place is available to the individual) and the individual spends at least one night in that place during the tax year. There is no requirement that the individual owns the property. In the original proposal the accommodation test was satisfied even if the individual's family (and not the individual himself) used the property during the tax year. The requirement for a continuous 91 day period of availability is also new). There are exclusions for staying with relatives on a temporary basis and short hotel stays will also generally be excluded (although the exclusion for non-consecutive leases of six months or less in the original proposal is now dropped).

OTHER ASPECTS OF THE PROPOSED STATUTORY RESIDENCE TEST

Split years

The basic principle at present is that a person is either resident in the UK for a full tax year or non-resident for a full tax year. By concession, however, a tax year can be split so that a person is treated as UK resident for only part of a tax year. This will be the case if

• he comes to the UK to take up permanent residence; or
• he leaves the UK to take up permanent residence abroad; or
• he loses his UK residence when leaving to work full-time outside the UK.

The proposed new rule also incorporates a split year test but it does not exactly replicate the previous one which relied upon the rather vague concept of a person becoming "permanently" resident in the UK or elsewhere. Instead under the new rule a tax year will be split into periods of residence and non-residence if the individual in question

• becomes resident in the UK by reason of having their only home in the UK and/or by starting full time employment in the UK;
• ceases to have a home in the UK and within six months of departure has established his only home in a country outside the UK and limits his/her return visits to the UK to fewer than 16 days during the remainder of the tax year of departure (under the original proposal no return visits at all were permitted to the UK during the remainder of the tax year of departure);
• loses UK residence by virtue of working full time abroad. (There is provision for the split year treatment to be available as well for an accompanying spouse); or

However, a tax year will not be split if an individual's residence status changes due to a change in the number of connection factors which apply to him under Part C, such as the arrival or departure of his family. (If a person is non-UK resident for only part of a tax year under the split year rule then the 20 day and 90 day tests in Part A are reduced pro rata. Moreover a working day requires more than three hours (subject to the Government consultation on increasing this to five hours) or more of work; an individual claiming to have worked for under three hours (or five hours, subject to consultation) a day may be required to retain evidence of this.

Anti-Avoidance Provisions

Ceasing to be UK resident means that an individual is no longer liable to UK tax on income from non-UK sources. This means that those who want to avoid liability on substantial amounts of income could plan short periods of temporary non-residence to achieve that. The new rules will therefore contain provisions to counteract the risk of individuals creating artificial, short periods of non-residence during which they receive free of tax large amounts of income which have accrued during periods of UK residence.

The proposed statutory residence test will contain rules that will work in a manner similar to the existing anti-avoidance rules for capital gains tax. The new rules will thus apply where an individual has been resident in four of the seven tax years prior to the tax year in which they became non-resident and then becomes resident again in any of the following five tax years. They will apply to (i) distributions from close companies (ii) lump sum benefits from employer financed retirement benefit schemes and (iii) chargeable event gains from life assurance contracts. This is in addition to the types of income, gains and remittances covered by existing temporary non-residence rules but will not apply to normal employment and investment income received during the non-resident period. (Under the existing temporary non-UK residence rules chargeable gains and allowable losses that arose during the years of non-residence are treated as arising instead in the tax year in which the individual becomes UK resident again. They will thus be taxable as if the person had been UK resident throughout.)

Death in tax year

Provisions will be introduced to modify the way in which the residence test works in the tax year of death. In the absence of special rules, the test could produce artificial results. For example, an individual who happened to die early in the tax year, having spent under 16 days in the UK, could be treated as conclusively non-UK resident under the "automatic overseas test". The legislation will therefore provide that in such a case the automatic overseas test does not apply.

ORDINARY RESIDENCE

Ordinary residence is a different concept from residence. As with residence, there is no statutory definition at the moment.

Ordinary residence is relevant to a person's tax liability in certain ways, including:

• A person who is not ordinarily UK resident can claim the remittance basis of taxation for foreign investment income. This means they are only liable to UK tax on such income if, broadly speaking, it comes into the UK;
• If non-ordinarily resident, a person is entitled to the remittance basis on income from foreign employment duties where the income is paid by a UK employer and hence is a UK source. This is known as overseas workday relief ("OWR") and is particularly important for short-term secondees to the UK.
• Only ordinarily UK resident individuals fall within the so-called "transfer of asset abroad" provisions. These are anti-avoidance provisions designed to limit individuals' options for avoiding tax through the use of offshore vehicles.

One of the questions open for consultation in June 2011 was whether the concept of ordinary residence should be retained generally or only for the purposes of OWR.

Following the original consultation the Government has now decided to retain "ordinary residence" for the purposes of OWR only. This will be relevant to individuals who come to the UK on short term assignments so as to become resident but not ordinarily resident. (Note, however, that the conditions for OWR are to be altered (see below)).

In other contexts ordinary residence will be abolished. Eligible individuals will no longer be able to elect for the remittance basis on overseas investment income. Moreover, the transfer of assets abroad provisions will apply more widely, to all individuals resident in the UK (not limited, as at present, to ordinarily resident individuals).

There will, however, be transitional provisions to ensure that individuals who currently benefit from being non ordinarily resident do not lose out following abolition of ordinary residence.

Changes to overseas workday relief ("OWR")

The Government proposes in the recent consultation that OWR should be available only to non domiciliaries (at present it is not so limited). Thus domiciled individuals who have been overseas and subsequently returned to the UK so as to become resident but not ordinarily resident will not receive OWR in future.

The original consultation also proposed that employees would be denied access to OWR if they had been UK resident in any of the previous five tax years ("five year look back period"). However, this might adversely affect internationally mobile employees who conceivably have more than one UK assignment over a five year period. The look back period is therefore reduced to three years. Thus employees will be denied access to OWR if they have been UK resident in any of the three tax years prior to coming to the UK to work.

The original consultation document also proposed that OWR relief should be denied to individuals who are resident in the tax year in question because their only home is in the UK. However, the Government now recognises that this could work unfairly against younger employees who come to the UK without having first acquired a home in their country of origin or elsewhere. Therefore the Government proposes to reformulate the test in order to deny OWR to the individuals who are "based" in the UK in circumstances where it is reasonable to assume (based on factors to be outlined in the legislation) that they will continue to be based in the UK for more than two full tax years. This reformulated test is one of the matters on which in the June 2012 comment the Government expressly invites comment.

CONCLUSION

The "consultation results document" addresses some concerns about the practical working of the test in its original form. Disappointing, however, is the limit to 15 days of return visits to the UK for "leavers" seeking to establish non-UK residence. Whilst an improvement on the originally proposed 9 days, it is still very restrictive.

In a number of other respects useful progress has been made, including the introduction of a transitional rule which will provide greater clarity for some "leavers" seeking to establish non-UK residence and the introduction of a provision to ignore days spent in the UK in specified "exceptional circumstances" (although these are somewhat narrowly defined).

Overall, the proposed statutory test remains a distinct improvement upon the current complex rules for determining a person's UK residence status, providing greater clarity and certainty.

Footnote

1. A tax year runs from 6 April in one year to 5 April in the following year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.