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Making sense of the statutory residence test (“SRT”) … Part two

Author

Andy Wood

Andy is a practical, creative tax adviser who assists a variety of clients in achieving their personal and commercial objectives in the most tax efficient manner.

Our first look at the SRT took in the Automatic Overseas (AO) tests. We now look at the other two tests which one might need to examine if one cannot gain certainty from the AO test.

The Automatic UK (“AUK”) Tests

General

As outlined, if one does not meet the AO Test then, and only then, do we move on to the AUK test. There are three limbs under which one might be automatically resident in the UK. You might be so resident under:

  • A day-counting test;
  • A home test; and
  • Another full-time work test

Day counting

First of all, and quite simply, if a person spends 183 or more days in the UK then this is a point of no return. That person will always be considered as resident in the UK.

Home test

The second limb of the AUK test is the ‘home test’. For ‘home test’ it is perhaps better to think about it as the ‘only home test’.

It is mildly confusing at the nitty gritty level, however, one will meet the ‘home test’ in circumstances if you:

  • have a home in UK and spend at least thirty days or part days in it; and
  • do not have an overseas home (this second limb is a bit more nuanced than this but this gives you the gist).

In summary, one needs to have a UK home and not have an overseas home.

Full time work test

This test is almost exactly as the full time work test under the AO Test.

However, and rather intuitively, its purposes is to assess the work days in the UK rather than the days overseas. Therefore, we are interested in ‘net UK hours’ rather than ‘net overseas hours’.

If the final answer which pops out of the sausage machine is 35 or more then, this time, one is UK resident.

The key difference is that the reference period may be a 365 day period which is non-coterminous with the tax year.

If one does not come to an answer after reviewing the AUK tests then you move on to the ‘Sufficient ties’ test.

 

Sufficient ties test

This test involves applying a day count to a specific threshold.

However, that threshold is higher or lower depending on the number of ties one has with the UK. The more ties, the fewer days one may spend in the UK without being treated as resident for tax purposes.

It is first worth considering what constitutes a ‘tie’:

  • Family tie: A person will have a family tie if a member of his family is UK resident. Broadly, family includes a spouse and minor children.
  • Accommodation tie: A person will have an accommodation tie in the UK if he has property available for his use.
  • Work tie: if the individual performs more than three hours work in the UK on 40 or more days in the tax year he will have a work tie.
  • 90 day tie: if the individual spent 91 days or more midnights in the UK in one or both of the two prior years then he will have a 90 day tie.

There is, of course, much more depth and nuance to the definition of these ties. However, such detail is outside the scope of this article.

In addition, for ‘leavers’, there is a fifth potential tie which will be triggered where the personal has spent more midnights in the UK than in any other country.

The thresholds differ depending on whether one is a ‘leaver’ or an ‘arriver’. In summary, it is harder to escape from the UK, than it is for a visitor to become UK resident.

Leavers: The day counts which results in a person becoming UK resident
If have 4 ties16-45 per year
If have 3 ties46-90 per year
If have 2 ties91-120 per year

 

Visitors: The day counts which results in a person becoming UK resident
If have 4 ties46-90 per year
If have 3 ties91-120 per year
If have 2 ties121-182 per year

 

Conclusion

Under the old rules, in order to determine and individual’s residence status, we had an unsatisfactory ‘patchwork’ of case law plus HMRC’s published guidance in IR20. However, it was clear from seminal cases such as Gaines-Cooper that even HMRC’s guidance was beginning to creak at the seams.

Since the 2013/14 tax year, we have had cold hard legislation. It is not simple by any means as it is designed to catch a wide range of complex, modern practices. In our modern world, simplicity is probably too much to ask.

However, regardless of complexity, we do have some hard and fast rules. This will present some readily identifiable safe harbours in which a person can shelter if the fact patter permits.

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