Unlike recent fiscal events, this Autumn Statement largely focused on those on lower incomes, with an absence of measures specifically aimed at higher and additional rate…
The Statutory Residence Test (SRT) came into force on 6 April 2013. This legislation enables an individual to conclusively determine their residence position.
An individual could be a resident for part of a tax year, but the split-year rules are complex. Anyone leaving or coming to the UK part way through a tax year should consider whether they will qualify for split-year treatment. In some cases, they could be a UK resident for the whole tax year.
An individual’s residence status under the SRT, includes the following tests:
- The automatic overseas test
- The automatic residence tests
- The sufficient ties test
The tests take place chronologically. Therefore, if an individual meets one of the automatic overseas tests, they are not a UK resident for the year, so there is no reason to consider the next two tests.
The automatic overseas tests
The existence of any one of the following automatic overseas tests will make an individual non-resident in a tax year:
- The individual was resident in the UK for one or more of the previous three tax years and spends fewer than 16 days in the UK in the current tax year
- The individual was resident in the UK for none of the previous three tax years and spends fewer than 46 days in the UK in the current tax year
- The individual:
- Works sufficient hours overseas for the relevant tax year (employees working full-time overseas on average at least 37 hours a week should qualify)
- Spends no more than 30 days working in the UK (a working day is defined as working for more than three hours)
- Spends fewer than 91 days in the UK in the tax year
The automatic UK tests
If an individual meets any of the automatic UK test criteria, they are eligible to be a UK resident for the year – only if they meet none of the automatic overseas test criteria. The automatic UK test criteria are as follows:
- The individual spends at least 183 days in the UK in the relevant tax year
- The individual has a home in the UK for a period of at least 91 days, all or part of which falls within the relevant tax year, and they are present in that home for at least 30 separate days in the tax year (and they have no home overseas or, if there is one or more homes overseas, they are not present in any of them for more than 30 days in a tax year)
- The individual works enough hours in the UK for a period of 365 days, all or part of which falls within the relevant tax year (during which time there are no ‘significant breaks from work’ of 31 days or more)
Generally, an employee working in the UK on average at least 37 hours a week would meet this test. However, all employees working on average at least 35 hours should review whether they meet the test criteria under the steps provided in legislation.
The work tests do not apply to International Transportation Workers, but the other tests can help in establishing their residence status.
The sufficient ties test
If an individual’s residence status is not determined by either of the above automatic tests, then it is necessary to consider the sufficient ties test. This test looks at four or five relevant ‘UK ties’ and compares them with the number of days that the individual spends in the UK in a tax year.
The ties are as follows:
- Family tie – the individual’s spouse, civil partner, or common law equivalent (provided the individual is not separated from them), or minor children are resident in the UK in the relevant year
- Accommodation tie – the individual has a place to live available to them in the UK during a tax year for a continuous period of at least 91 days (not counting any gaps during this period of fewer than 16 days) and spends at least one night at that place in the year
- Work tie – the individual works in the UK for at least 40 working days in a tax year, where a working day is more than three hours
- 90-day tie – the individual spent more than 90 days in the UK in either, or both, of the previous two tax years
- Country tie (only relevant to an individual who was resident in the UK for one or more of the preceding three tax years) – an individual spends more days in the UK than in any other country in the tax year
The number of days spent in the UK per tax year will be important for all three tests. A UK day counts if the individual is present in the UK at midnight, subject to the deeming rule (below). In principle, it is possible for an individual to spend a day in the UK (arriving in the morning and leaving in the evening) without that day counting towards the SRT. Transit days do not count as days spent in the UK.
The deeming rule
The deeming rule applies where an individual has:
- at least three UK ties for the tax year
- been present in the UK on more than 30 days without being present at the end of that day (called ‘qualifying days’)
- been UK resident in one or more of the preceding three tax years
If the deeming rule applies, more than 30 days of departure count as days spent in the UK. Note the importance of checking UK ties if this situation arises. The deeming rule does not apply for the purposes of the third automatic overseas test.
Days in the UK do not count if the individual’s presence is due to exceptional circumstances. The maximum number of days disregarded in this respect is 60. Exceptional circumstances will apply only where the individual was present in the UK due to circumstances beyond their control, which were unforeseen and where there is no option but to stay in the UK.
Split-year treatment cannot apply to a person who is non-resident for the year. Where split-year treatment applies, the individual is still regarded as a UK resident for the whole of the tax year, but the tax liability for the overseas part of the year is calculated as though they are non-resident for that period.
Death of individual
Special rules apply for individuals who die in a tax year with regard to the permitted UK days.
Overseas workday relief
Overseas workday relief (OWR) will be available for an individual who:
- is non-UK domiciled
- has been non-UK resident for the three tax years preceding arrival
OWR is available for the tax year of arrival, and the following two tax years. Transitional rules mean that an individual who would have benefited from OWR for three full tax years will continue to be able to benefit for this amount of time if they were claiming OWR on 6 April 2013.
Transitional rules apply to termination payments where the individual arrived in the UK before 6 April 2013.
For further information on the RDR4 Overseas Workday Relief (OWR) legislation, please refer to the HMRC guidance.
The SRT can provide individuals with certainty in relation to their UK residence status. Although, the legislation is complex and must be carefully considered for those who have a presence in, or connections with, the UK. In particular, the application of the split-year rules may cause the period of residence to apply for longer than anticipated in the tax year of departure or arrival. It may not apply at all, resulting in foreign income and capital gains falling unexpectedly within the scope of UK tax.
Individuals who were non-UK resident before 6 April 2013 should review their status with the relevant SRT rules each tax year.
This is a general overview of the legislation set out in the Finance Act 2013. An individual should not rely upon it in isolation to establish their residence status.
We encourage all non-residents and individuals coming to or leaving the UK to review their residence status.
If you require assistance regarding the Statutory Residence Test, please do not hesitate to contact PKF Francis Clark. We can offer you the expert advice that you will need.