Breaking UK residence - what to watch out for?

If you are planning to leave the UK and live abroad, you may be wondering how this will affect your tax situation. In particular, you may want to know how to stop being UK tax resident and what are the consequences of returning to the UK too early. 

There are a number of tax benefits available to new arrivers in the UK but the definition of a new arriver depends on the benefit you are considering. In order for those benefits to be reset properly, you need to have stayed outside of the UK for a sufficiently long period depends on the given benefit. 

In this article, we will explain the main rules and concepts that you need to be aware of, such as the statutory residence test, the overseas workday relief, the remittance basis and the temporary non-residence rules. We will also give you some practical tips on how to plan your departure and potential return in a tax-efficient manner. 

The Statutory Residence Test 

The first thing you need to know is how to determine your UK residence status for tax purposes. This is done by applying the statutory residence test (SRT), which is a set of rules that came into effect from 6 April 2013. The SRT consists of three parts: an automatic non-resident test, an automatic resident test and a sufficient ties test. You need to consider them in that order and stop as soon as you meet one of them. 

The automatic non-resident test 

You will be automatically non-resident for a tax year if you meet any of the following conditions: 

• You spent less than 16 days in the UK in that tax year and you were UK resident for one or more of the previous three tax years
• You spent less than 46 days in the UK in that tax year and you were not UK resident for any of the previous three tax years
• You worked abroad full-time (averaging at least 35 hours a week) for that tax year, without any significant breaks (more than 30 days), and you spent less than 91 days in the UK, of which no more than 30 were spent working 

If none of these apply, you need to move on to the automatic resident test. 

The automatic resident test 

You will be automatically resident for a tax year if you meet any of the following conditions: 

• You spent 183 days or more in the UK in that tax year
• You had a home in the UK for at least 91 consecutive days (including at least 30 days in that tax year), and either you had no home overseas or you spent less than 30 days at each of your overseas homes in that tax year
• You worked full-time in the UK for at least 365 days (including at least one day in that tax year), without any significant breaks, and more than 75% of your working days were in the UK 

If none of these conditions apply, you need to move on to the sufficient ties test. 

Split Year Treatment under new SRT

Normally, if you are resident in the UK for any part of a tax year you will be taxed as a UK resident for the whole of the tax year. However, there are special rules which may apply to you if you either leave the UK to live or work abroad, or come from abroad to live or work in the UK. These special rules split the tax year into a UK part, when you are taxed as a UK resident, and an overseas part, when you are taxes as a non-UK resident.

Before 6 April 2013, HMRC operated these special rules as a concession known as Extra Statutory Concession A11. After 5 April 2013, these special rules are contained in law, under the Statutory Residence Test ('SRT'). Once you have determined using the new SRT test that you are non resident for part of the year you still need to find out what is the exact date where the status changes. As with the residence test, treatment is different whether you are a leaver or an arriver. Here are the rules for finding out that date:

The Remittance: some examples

HMRC will be soon be undertaking an "educational exercise" in respect of individuals taxed under the remittance basis in 2011/12. They are of the opinion that taxpayers may not fully understand the remittance basis, and are concerned that they will have experienced problems in completing their tax returns accurately. They will also be sending out a factsheet with this letter. They say that the intention behind the letters is primarily educational, and hope that it will prompt taxpayers to conclude that they need extra help in this area.

People don't always understand that it's not just a transfer of money that can trigger a remittance. Here are the examples mentioned in the fact list:

Money transfers to the UK

• You transfer some of your foreign income from your offshore bank account to your UK bank account.
• You withdraw some cash from your foreign bank account (that contains your foreign income) whilst overseas and bring the cash with you when you return to the UK.
• You give some of your foreign income to your spouse or civil partner who brings the money to the UK.
• You transfer some of your foreign income to the UK account of a registered Charity.
• You rent out your holiday home abroad and the customer pays the rent directly into your UK bank account.
• You loan some of your foreign income to a company you control overseas or settle some foreign income in an offshore trust. The company or trustees bring the money to the UK.
• You inherited money a few years ago that you deposited into a foreign interest bearing bank account and you transfer some of the money from this account to the UK. Although the inheritance is not taxable when remitted, the account will also contain taxable interest that will be treated as remitted before any of the non taxable inheritance.

Bye bye NOR... Hello OWR!

People who have come to the UK to work and who travel a lot have known about the concept of Non Ordinary Residence (NOR) as it has allowed them to benefit from significant tax savings. Under that status, one would only pay income tax on income related to UK work as long as foreign income was kept overseas.

The concept of ordinary residence is no more however. It was withdrawn in the last budget with effect from tax year 2013-2014. That's the bad news. The good news however is that it was replaced by the concept of Overseas Workday Relief (OWR). This is one is statutory. The main difference between the 2 is that one cannot benefit from OWR if domiciled (which was not the case with NOR).

Buying your way into the UK

Property prices in London have challenged economic conditions in the past decade. There is a very simple reason for that. There are just too many rich foreigners coming to the UK. It's actually quite easy to explain. Not only the is the tax system very attractive for them thanks to the non-domicile status but it's quite easy to obtain a Visa if you are ready to bring in enough money into the British Economy. In many jurisdictions, obtaining residence visas can be fraught with red tape, delays, quota restrictions and other hidden difficulties, often resulting in refusals of such applications. Not so in the UK.

Here are the options:

The Tier 1 Entrepreneur Visa

The basic requirements for the initial visa are that the individual needs to show evidence of having £200,000 available to invest in the UK and needs to be able to speak English.

The new Statutory Residency Test (SRT)

Currently it can be very difficult to know for sure if one is UK resident or not. The uncertainty has been the reason there has been so many tax cases on that subject, often with a surprising outcome. We have heard about the new Statutory Residency Test (SRT) for a few years now and it looks like it's going to happen next year at last. As a reminder, here is a summary of the current situation today:

If you are not UK resident, you will become UK resident if either applies:

• You are physically present for 183 days or more in a tax year
• You have visited the UK for an average of 91 days per annum over 4 consecutive tax years (you will then be regarded as resident from the beginning of the 5th year)

More bad news for non-doms

Non-domiciled individuals have been watching this Budget particularly carefully as it had already been announced prior to its delivery on 21 March 2012 that the Chancellor would be taking action in relation to individuals who acquire UK property through offshore companies. In order to tackle what the Government calls the 'enveloping' of high value properties into companies to 'avoid paying a fair share of tax', three measures are to be introduced:

• a new 15% rate of stamp duty land tax (SDLT) to purchases of UK residential properties worth over £2 million by 'non-natural persons'
• an annual charge on UK residential properties valued at over £2million owned by such persons
• an extension of the capital gains tax (CGT) regime to gains on the disposal of UK residential property and shares or interests in such property by non-natural persons who are non-resident

UK expats at risk of being caught by residency test changes

As the British government seeks ways of supplementing its tax take, the British residency test will be changing from April 2012. If you are a British citizen who’s working in Dubai, Hong Kong or Singapore because you want to pay less tax, this could be a big issue. The new rules are very complex but in a nutshell, you could put yourself at risk if you visit the UK for more than 10 days per year. Coming back to the UK for more than that makes you fall into the connections tests and at risk of being classified as UK resident.

These connections tests look at various things, including whether you still have a house in the UK, whether your family are based in the UK and whether you have financial ties to the UK. Although children at boarding school are not counted as being ‘family in the UK’ during term time, they will count as ‘family in the UK’ if they remain in the country staying with grandparents or friends during school holidays. Equally, when the new rules come into effect in April, there will be a look back over three years at people’s previous visits and connections.