On 6 April 2013 the Statutory Residence Test (SRT) came into effect and must now be used in order to determine whether or not an individual is UK resident for tax purposes. Prior to this, an individual’s tax residence was determined by a mixture of statute, case law and HMRC guidance.
Despite the Government’s goal for the legislation to create a simplified way to determine residence, the series of tests to be considered are in fact very complex and require close attention to detail. Those tests are outlined below, but it should be emphasised that professional advice will be required in all cases, particularly whilst the legislation remains relatively untested.
The Statutory Residence Test comprises three main tests to determine whether or not an individual is resident in the UK for a particular tax year:
- Automatic overseas tests
- Automatic residence tests
- Sufficient ties test
Where an individual meets any of the automatic overseas tests, he is automatically not resident in the UK for that year, and none of the other tests need to be considered.
Where an individual does not meet any of the automatic overseas tests, the automatic residence tests are considered next. If one of these tests is met for a particular year, the individual will be UK resident for that year. If none of these tests is, the sufficient ties test must then be considered.
If the individual does not meet any of the automatic resident tests or the sufficient ties test for that year, then the individual is not resident for UK tax purposes in that tax year.
Automatic overseas tests
An individual is automatically non-resident for a tax year if they meet any of the following tests:
- The individual was resident in the UK for one or more of the three preceding tax years, and spends fewer than 16 days in the UK in the tax year.
- The individual was not resident in the UK in all of the three preceding tax years, and spends fewer than 46 days in the UK in the tax year.
- The individual works full-time abroad for the tax year without any significant breaks from that overseas work, and:
- Spends fewer than 91 days in the UK in the tax year, and
- The number of days in the tax year during which the individual does more than 3 hours work in the UK is fewer than 31.
- The individual dies in the tax year and was not UK resident in the preceding two tax years and the number of days spent in the UK during the tax year is less than 46.
Full-time work is defined as one or more employments or self-employments with combined total hours of 35 or more per week. Note that the UK day counting limits whilst working abroad will be reduced pro-rata where the taxpayer leaves part way through a tax year.
Automatic residence tests
Subject to not meeting any of the automatic overseas tests, an individual is automatically resident in the UK for a tax year if they meet any one of these tests:
- The individual spends 183 days or more in the UK in the tax year; or
- The individual has a home in the UK for more than 90 days (which can straddle two tax years), and
- He is present in that UK home on at least 30 separate days during the tax year, and
- While he has that UK home there is at least one period of 91 consecutive days when he has no home overseas (or has one or more homes overseas but each of those homes is a home at which the individual is present on fewer than 30 separate days during the tax year); or
- The individual works full-time in the UK for 365 days (which can straddle two tax years) with no significant break of 31 days or more other than for leave and sickness, and:
- All or part of that work period falls within the tax year, and
- More than 75% of the total number of days in the tax year when he does more than 3 hours work are days when he does that in the UK.
- The individual dies in the tax year, and
- He was UK resident by virtue of the automatic residence test for each of the preceding three tax years, and
- The year before the tax year of death was not a split year; and
- His home was in the UK or he had more than one home and at least one of them was in the UK.
If any one of these automatic UK tests applies for a particular tax year, and none of the automatic overseas tests apply, then the individual will be UK resident for tax purposes for that tax year.
“Home” is not restricted to owned property. Property advertised for sale or let is not an individual’s home, providing they are living at another residence.
The definition of full-time work is again a combination of employments or self-employments taking up at least 35 hours a week.
Sufficient ties test
If neither the automatic overseas or automatic UK residence tests are met, the individual must consider his connections to the UK (called ties) and determine whether his ties are sufficient for him to be considered UK resident for a particular tax year.
What counts as a UK tie varies according to:
- Whether or not the individual was UK resident in any of the three tax previous tax years, and
- The number of days that the individual spends in the UK in the tax year under consideration.
The effect of the rules is that the more ties an individual is deemed to have in the UK, the fewer days he can spend in the UK without becoming UK resident.
If the individual was not UK resident in all of the three years before the year under consideration, he will need to consider if he has each of these UK ties:
- A family tie (an individual has a family tie if his spouse, civil partner, cohabiting partner or minor child is UK resident in the current tax year)
- An accommodation tie (an individual has an accommodation tie if he has UK accommodation available to him for at least 91 days and he spends at least 1 night there (or 16 or more nights if the accommodation is that of a close relative),
- A work tie (an individual has a work tie if he does more than 3 hours work a day in the UK for at least 40 days), and
- A 90-day tie (an individual spends more than 90 days in the UK in either or both of the two preceding tax years)
If an individual was resident in the UK for one or more of the preceding three tax years he will also need to consider if he has a country tie (the country in which an individual is present for the greatest number of days in the tax year). If this is the UK then this tie is counted.
Ties and Day Counting
The number of days an individual spends in the UK in a tax year dictates the number of UK ties that are needed for him to be UK resident. This is set out in the table below:
Days spent in the UK in tax year under consideration
Number of UK ties required for UK residence
Tax payer was UK resident in any of the previous 3 tax years
Tax payer was UK resident in none of the previous 3 tax years
16 – 45
46 – 90
91 – 120
More than 120
A day only counts if the individual is present in the UK at midnight, unless:
- He is in transit in which case that midnight is ignored, or
- He has to spend time in the UK due to exceptional circumstances which are beyond his control (e.g. sudden or life threatening illness or national, local emergencies or natural disasters) and he intends to leave the UK as soon as circumstances permit him. These are capped at 60 days in any one tax year.
If an individual is not present in the UK at the end of the day that day will not count as a day spent in the UK. This is subject to the deeming rule.
The deeming rule applies to an individual for a tax year if:
- The individual has at least 3 UK ties for a tax year, and
- He has been present in the UK on more than 30 days in the tax year, without being present at the end of that day (a qualifying day), and
- He has been UK resident in one or more of the preceding three tax years.
If an individual meets all these conditions the deeming rule means that, after the first 30 qualifying days, all subsequent qualifying days within the tax year are treated as days spent in the UK.
Split Year Treatment
If an individual moves to live or work abroad or comes from abroad to live in the UK, the tax year may be split into periods of residence and non-residence which is generally beneficial to the taxpayer. Previously this treatment was available by concession but new legislation has now been brought in to grant split year treatment in specific circumstances (known as Cases) if an individual:
- Leaves the UK to take up full-time work abroad; or
- Accompanies a partner who leaves the UK to take up full-time work abroad; or
- Leaves the UK to establish his or her home abroad, ceases to have a home in the UK and limits his or her return visits to the UK to fewer than 16 days in the remaining part of the tax year of departure; or
- Comes to the UK during the tax year and starts to have his or her only home in the UK or otherwise acquires a home in the UK according to the above tests; or
- Comes to the UK during the tax year and starts full-time employment in the UK; or
- Returns to the UK having ceased full-time work overseas; or
- Accompanies a partner who returns to the UK having ceased full-time work overseas; or
- Starts to have a home in the UK. This differs from Case 3 as it permits the individual to also have a home overseas.
Each case contains a series of tests that must be met before split year treatment is available. Particular care needs to be taken as it is not necessarily the date the individual arrives in, or returns to, the UK that is the date from which he becomes UK resident.
Overseas Workday Relief
Relief from tax for overseas workdays under the remittance basis of taxation is still available for non-domiciled individuals coming to the UK who have not been resident in the previous three tax years.
Although a definitive statutory test for residence is to be welcomed where it brings certainty to taxpayers, the rules are complex and still open to some interpretation, particularly where an individual has a UK home of any sort. Day counting is also now much more stringent and will require careful record keeping.