HMRC publish guidance on statutory residence test

HMRC have published guidance for non-UK residents in relation to what circumstances will be considered ‘exceptional’ under the Statutory Residence Test (SRT) during the COVID-19 outbreak. As we approach the end of the 2019-20 tax year, non-UK residents may be concerned as to the impact of COVID-19 on their status as a UK resident for tax purposes.

SRT and exceptional circumstances

The SRT considers whether an individual is a resident in the UK for tax purposes. A key factor in determining this is the number of days the individual spends in the UK. An individual is considered to have spent a day in the UK if they are here at the end of the day (also known as the ‘midnight rule’). This rule is subject to the exceptional circumstances exception.

Exceptional circumstances apply where the individual meets both of the following conditions:

1) The individual would not be present in the UK at midnight on the day in question but for exceptional circumstances beyond the individual’s control that prevent them from leaving the UK.

2) The individual intends to leave the UK as soon as those circumstances permit.

The exception can only apply to a maximum of 60 days in any tax year. Days spent in the UK which exceed the 60 day limit are counted as days of presence in the UK for the purposes of the SRT.

Caution is also advised as exceptional circumstances are not taken into account for all SRT day-counting rules. Initial steps must be taken to consider whether exceptional circumstances may apply to an individual’s situation.

HMRC’S approach to applying exceptional circumstances

It will depend on the particular facts, the individual’s circumstances and the choices available to them as to whether days spent in the UK can be disregarded due to exceptional circumstances.

Existing HMRC guidance confirms that the exception normally applies to events which occur while an individual is in the UK which prevents them from leaving. The exception will apply to situations in which the individual has no choice concerning the time they spend in the UK. The individual must have no control of the situation and it could not have been reasonably foreseen.

A situation which HMRC consider to be an exceptional circumstance is a sudden or life threatening injury to an individual. It is also considered that a sudden or life threatening injury to a partner or dependant child of an individual is exceptional in limited circumstances. In rare instances, HMRC will also deem exceptional circumstances in which an individual has to return to return to the UK due to sudden or life threatening injury to a partner or dependant child.

The guidance confirms which situations HMRC do not deem to be exceptional for SRT purposes. These include routine medical treatment and life events including births or deaths. Travel problems, such as train delays or cancellations and missed flights due to traffic disruption, are not normally sufficient for the exceptional circumstances exception to arise.

New guidance in relation to COVID-19

On 25 March 2020, HMRC issued guidance which considered the impact of the COVID-19 outbreak on non-UK residents and their tax status in the UK. HMRC confirmed that, during the COVID-19 outbreak, the following four circumstances would be deemed exceptional for the purposes of SRT:

1) An individual is quarantined or advised by a health professional or public health guidance to self-isolate in the UK as a result of COVID-19.

2) An individual is advised by official government advice not to travel from the UK as a result of COVID-19.

3) An individual is unable to leave the UK as a result of the closure of international borders. 

4) An individual is asked by their employer to return to the UK temporarily as a result of COVID-19.

Caution must be taken as HMRC have confirmed that this guidance may be changed at short notice. Future updates to the guidance can be found at https://www.gov.uk/hmrc-internal-manuals/residence-domicile-and-remittance-basis/rdrm11005.

As it is uncertain as to the duration of the measures being implemented by the UK government, and with the end of the tax year approaching, HMRC may be forced to clarify the existing guidance or add further exceptional circumstances. For example, if measures are implemented by the government which restrict moving from and to the UK for a period in excess of 60 days, then consideration of the 60 day limit may be required.

Individuals may also be wondering whether HMRC will adopt generous interpretations of their existing guidance. For example, if elderly relatives (which are not covered in the current guidance) become ill and a non-UK resident is required to be in the UK. HMRC may need to consider relaxing their rules to allow for individuals to disregard days spent in the UK dealing with such situations.

In light of the new guidance, it serves as a reminder of the importance for non-UK individuals to keep up-to-date records of time spent in UK.

Posted on: 30/03/2020

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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