UK Residence: Greater Certainty In The Works

An individual’s UK tax residence status has a significant bearing on the amount of income and gains that is taxable in the UK.

Somewhat surprising then is the fact that the United Kingdom does not have a clear definition of UK tax residence. The current definition rests primarily on court decisions from legal cases over a long period of time. This has resulted in a vague system that is somewhat subjective in nature, especially for those who travel to and from the UK frequently or have certain connections to the UK. This was typified in the now famous case of Gaines-Cooper vs. The Commissioners for HMRC where a UK businessman migrated to the Seychelles in 1976, and spent less than 91 days in the UK each tax year but maintained UK property and other UK interests. On October 19, 2011, he lost his appeal before the UK Supreme Court and was considered a tax resident despite following what he thought was Her Majesty’s Revenue and Customs’ (HMRC) guidance on non-residence.

All this could be about to change with the introduction of a statutory residence test (SRT), expected to take effect beginning April, 2012. Adopting its policy on consulting with the public and practitioners on a proposed framework, the UK HMRC finalized the consultation stage in early September and now is moving to draft legislation.

The proposed framework provides a clear residence outcome for the vast majority of people whose circumstances are straightforward. For more complex situations, it provides clarity on the specific definitions and weighting of relevant connections and time spent in the UK. For example, under proposed rules an individual is not resident in the UK for a tax year if he or she satisfies any of the following conditions:

• is not resident in the UK in all of the previous three tax years and is present in the UK for fewer than 45 days in the current year;
• is resident in the UK in one or more of the previous three tax years and is present in the UK for fewer than 10 days in the current tax year; or
• leaves the UK to carry out full-time work abroad, and is present in the UK for fewer than 90 days in the tax year and no more than 20 days are spent working in the UK in the tax year.

Residence should not be confused with domicile. Domicile is a complex subject but can broadly be described as where you have your permanent home. A person not domiciled in the UK, even if a UK resident, generally does not pay UK tax on foreign income and gains unless it is remitted to the UK. For longer term residents (7 out of 10 years) the remittance basis can be maintained at an annual charge of £30,000, which is creditable in the United States. The UK HMRC is also looking to reform the taxation of non-domiciled individuals. The consultation period on the proposed reform has also recently closed and could result in an increase in the annual charge to £50,000 for those who have been residents in the UK for the past 12 out of 14 years. It may also enable non-domiciles to remit foreign income and gains tax-free to the UK for the purpose of commercial investment in UK businesses.

Editor's Note: Information in this article is current as of December 19, 2011.