Please can you tell me what the rules are? I cannot make head nor tail of them. I want to come back and visit but I only have 27 days left and that will take me over the 91 day rule for the 4 years. (I spent an extra 30 days here last year, taking her to the hospital and back and looking after our mum)

Trevor Wilkes, Principal of Trewtax Services responded as follows:

Your query has been passed to me to review and shed some light upon in terms of your predicament. This is not intended to represent advice, I would need some detailed background information from you which I don’t have. This may help you to understand how you fit into the UK’s complex rules for non-residency. If you are still unsure where you stand at the end of this, then I can provide you with 1 to 1 advice.

What I will say judging by your comments is that you seem to be calculating your UK days by virtue of the “old rules” and the ‘no more than 183 days in any one tax year and less than 91 days per annum on average over a rolling 4-year period’. This set of rules came to an end on 5^th April 2013.

From 6^th April 2013, HMRC rolled out the Statutory Residence Test and this became the first time that the UK had legislation which determines whether someone is resident or not for UK taxation and their position for UK income and capital gains tax purposes.

Briefly if that is possible let me give you an outline. The test has three separate tests and within each of the three tests there are different criteria which need to be looked at to determine your residence status for the UK tax year in question. The three tests need to be considered in order each and every year. As the tests run consecutively, if you happen to meet any of the criteria within the first test it is not necessary to look beyond this to the two other tests.

The three tests are:

Part A – Automatic Overseas Test.

Part B – Automatic UK Test.

Part C – Sufficient Ties Test.

The basic rule is that you will be resident in the UK for the entire tax year if you do not meet any of the Automatic Overseas Test and you meet the conditions set out either by the Automatic UK Test or Sufficient Ties Test.

Part A – Automatic Overseas Test

 Part A has to be looked at first and you will be automatically non-resident for the UK tax year under consideration if any of the following tests are met.

• You were resident in the UK in one or more of the three preceding tax years and your spent fewer than 16 days in the UK in the tax year.
• You were resident in the UK in the UK for the none of the three years preceding the tax year and spent fewer than 46 days in the UK in the tax year.
• You work full time overseas over the course of the tax year without significant breaks during the tax year from overseas work, and you spend fewer than 91 days in the UK and the number of days in the tax year on which you work for more than three hours in the UK is less than 31.

The definition of full time work overseas is if you work for “sufficient hours” working abroad and sufficient hours is where you have worked on average 35 hours or more per week overseas and there is a calculation which needs to be worked through to determine whether or not you will meet this condition.

At this time, I do not propose to go into any more detail about the calculation. If you do not meet any of these three tests in Part A then the tests in Part B needs to be considered.

Part B – Automatic UK Tests.

If you do not meet any of the Automatic Overseas Tests, you are resident in the UK for the tax year if you meet any of the three tests below.

• You are present in the UK for more than 182 days.
• You have a home in the UK which is available for 91 consecutive days and you spend 30 days at the UK home during the tax year and you either have no home overseas or you have a home overseas and you spend fewer than 30 days in your overseas home.

A home under the test can a building or part of one, a vehicle, vessel or structure of any kind you use as a home.

The home is somewhere you use with a sufficient degree of permanence or stability to count as a home. A home also includes a property which you can rent whether it is in the UK or overseas.

You will meet this test if you have a home in the UK for 91 or more consecutive days and you spend at least 30 days (not necessarily consecutive) in the home during the tax year. At the same time, there must be no home overseas, or there is a home overseas but it is not used for more than 30 days, again not necessarily consecutively in the tax year.

• You carry out full time work in the UK for any period of 365 days when you do than more than 3 hours of work per day here.

• All or part of the 365-day period falls within the tax year.
• More than 75% of the total number of days in the 365-day period when you do more than 3 hours’ work are days when you do more than 3 hours work in the UK.
• At least one day which is both in the 365-day period and in the tax year is a day on which you do more than 3 hours of work in the UK. If you do not meet any of the tests set out in Part B, then your residence position will need to be determined by looking at Part C of the test.

Part C – Sufficient Ties Test.

This test only needs to be considered if you do not meet any of the Automatic Overseas and UK tests. The Sufficient ties test considers your connecting factors to the UK which are called ties and the number of days you can spend in the UK to determine whether you are resident or not.

If you were not resident in the UK for any of the three years preceding the tax year of your move to the UK, the following needs to be considered.

• Family Tie.

You have a family tie if your spouse, civil partner or if you are living with your partner as “husband and wife” as if you were civil partners (the exception to this if you are separated under order of a court of a competent jurisdiction, deed of separation or where in the circumstances the separation is likely to be permanent) or minor child are likely to be resident in the UK.

You will not have a family tie with a child under the age of 18 if you see your child for less than 61 days in total during the year. If your child happened to turn 18 during the tax year of consideration and the child is UK tax resident, under 18 years old, in full time education in the UK at any time in the tax year under consideration, spends less than 21 days in the UK outside of term time and would not be before your child turned 18. If your child is in full time education you will not meet this tie if your UK resident if then time they spend in full time education in the UK were disregarded.

Full time education means that your child is at university, college, school or another educational establishment in the UK and the time spent in full time education in the UK is the time spent there during term time. You will also not have a family tie if you spend less than 61 days in total for the period of the tax year

• Accommodation Tie.

This is different to the home test as described in the automatic residence teats. The main difference between having a home and available accommodation is that the available accommodation does not need to be owned by you. There does need to be any degree of stability or performance that a home provides. For the purposes of the accommodation tie this is met if you;

1. Have a place to live in the UK which can be a home, holiday home, temporary retreat or other accommodation that you can live in whilst you in the UK.
2. The property is available to you for a continuous period of 91 days during the tax year, and
3. You spend one or more nights there during the year, or
4. If it is a home of a close relative, you spend 16 or more nights there during the year. A close relative is a parent, grandparent, brother, sister, child, grandchild aged 18 or over. If there is a gap of less than 16 days between periods in the tax year where you have a place to stay which is available, that place will be treated as continuing to be available during the gap. Short stays and guesthouses or hotels will not usually be considered to be an accommodation tie, however this will be met if you happen to book a room in the same hotel or guesthouse for at least 91 days continuously in the tax year.

• Work Tie.

This tie will be met if you work for more than 3 hours a day in the UK for more than 40 days whether continuously or intermittently in the UK during the tax year. There are different rules about what constitutes 3 hours work for people who have relevant jobs.

• 90 Day Tie.

This tie will be met if you have spent 90 days or more in the UK in either of the previous two tax years.

In additional to the four ties described above, if you were resident in the UK for one or more of the three years before the UK tax year of your move to the UK, there is a further tie to be reviewed and this is the Country Tie.

• Country Tie.

This tie is met if you spend more time in the UK in the tax year than any other country during the tax year. If there are two or more countries which you happen to spend the same amount of time as you spend in the UK, then you will be treated as meeting this tie.

Once the number of ties has been calculated, then the following table is used to determine the number of days you can spend in the UK in the tax year concerned which will then lead to an outcome of you either remaining non-resident or becoming tax resident.

Ties                                                             Leaver                                                         Arriver

1                                                            121 or more                                              Not Applicable

2                                                              91 or more                                                 121 or more

3                                                              46 or more                                                   91 or more

4 or 5                                                      16 or more                                                   46 or more

Interestingly, as you will see from the table, as you will be considered an arriver, having 0 or 1 ties means in theory you could spent up to 182 days in a UK tax year and still remain non-resident.

As you may be aware, for the purposes of all the tests, a day in the UK is counted by reference to the number of midnights you are present here. An exception to this rule does apply, (the transit exemption) when an individual finds themselves present at midnight whilst traveling between two separate destinations outside of the UK (e.g.to transfer a connecting flight), provided between arrival and departure the individual does nothing of substance other than pass through the UK.

Days in the UK can be ignored if time in the UK is considered “exceptional” where circumstances prevent departure from the UK. Time spent in the UK where you have little or no choice such as the death of a direct blood relative can in certain circumstances be ignored or discounted. Unfortunately time you are having to spend in the UK due to parental caring you cannot discount if the purpose of your day counts.

This represents how residence is addressed year on year. You are either regarded as non-resident or resident in complete tax years. It would seem at face value that for you to remain non-resident that you maybe dependant on Part C of the SRT.