As of 6 April 2013, whether an individual is resident in the UK for tax purposes will be determined by the Statutory Residence Test.
It is designed to give taxpayers greater certainty and clarity as to whether or not they are UK-resident for tax purposes. This in turn will provide certainty as to whether or not they are subject to UK income tax and capital gains tax. Due to the drafting of these rules, it remains to be seen whether the goal of greater clarity will be met.
In December 2012 HM Revenue & Customs produced draft guidance and legislation for the Statutory Residence Test. The legislation has since been updated in the draft Finance Bill 2013.
The Main Changes
The main changes to the statutory residence tests were the introduction of ‘sufficient hours’ and the addition of a fifth automatic overseas test.
In the first draft both the third automatic overseas test and third automatic UK test contained reference to ‘full-time work’. This phrase has now been replaced with ‘sufficient hours’, and there is a corresponding test to determine whether an individual has worked ‘sufficient hours’.
The sufficient hours test has been criticised as it does not allow for an adjustment (when determining whether sufficient hours have been worked) for periods of absence other than annual leave, parental leave, sick leave or embedded non-working days.
Therefore an adjustment is not allowed for agreed ad-hoc leave, such as compassionate leave or study days.
The provisions regarding gaps between periods of work are also highly restrictive, applying only where the gap is one between two employments. It has not been extended to gaps between an employment and a trade, or two trades.
Generally speaking, the sufficient hours test is met when an individual works on average 35 hours per week after making the allowed adjustments, although the actual calculation is complex.
Fifth Automatic Overseas Test
A fifth automatic overseas test has been added where an individual dies during the tax year.
It is, loosely, a test which applies to those who die during the year and who have become non-resident in a previous year because they have gone to work abroad.
The two most important areas where changes have not been made are in respect of the accommodation tie and of the definition of a ‘home’.
The accommodation tie still contains concepts which have no precise definition such as ‘a holiday home or temporary retreat’. This is likely to lead to differing interpretations of what is and what is not a holiday home by HMRC and taxpayers.
Perhaps more importantly the Statutory Residence Test uses the concept of home, which is a notoriously difficult word to pin down as it can bear a wide range of meanings. Unfortunately no clear and exhaustive definition of what constitutes a home has been provided by the Statutory Residence Test which is likely to cause ambiguity in its application.