Counting the day – UK Residence, exceptional circumstances & Covid-19
With more than 400,000 people around the world contracting coronavirus, there are more important concerns than personal tax at the moment. However, as we move towards 5 April and the end of the UK tax year, some individuals will be worried that an extended stay in the UK due to coronavirus could prejudice their tax position.
UK tax residence, which governs your liability to UK tax, is based on the Statutory Residence Test (SRT). Many of the rules which determine residence contain a day count. For example, an individual will be automatically resident in the UK if they spend at least 183 days of any tax year in the UK.
As a consequence, there are a lot of individuals currently counting the days, either because they are near their limit of ‘permissible days’ in the UK or because they are seeking to leave the UK to become non-resident from 6 April 2020. If you’re such an individual, you may be concerned that your enforced presence in the UK could prejudice your tax position.
The SRT provides that a day does not count if your presence in the UK at the end of that day is due to ‘exceptional circumstances’ beyond your control which prevent you from leaving the UK.
On 19 March 2020 HMRC recognised that coronavirus can constitute ‘exceptional circumstances’.
However, HMRC also stressed that each taxpayer’s case must depend on his/her particular facts and circumstances. Note that HMRC have not gone as far as saying that all days in the UK at the moment are ‘exceptional’. Rather, for you to benefit from ‘exceptional circumstances’ you would have to fall within one of the following categories:
- You are quarantined or have been advised by a health professional or public health guidance to self-isolate in the UK as a result of the virus
- You find yourself following official government advice not to travel from the UK as a result of the virus
- You are unable to leave the UK as a result of the closure of international borders
- You are asked by your employer to return to the UK temporarily as a result of the virus.
If your continued presence in the UK does not fall within the above categories, then there can be no assurance that a day in the UK will not count for residence purposes. HMRC have said they will look sympathetically at individual cases, but you should seek to collect strong factual evidence of factors beyond your control to support your case.
HMRC also state that ‘events resulting from the impact of the virus are changing rapidly’ and that, as a consequence, ‘their guidance may change at short notice as situations change’.
The Small Print
It is important to remember that HMRC have previously published detailed guidance concerning the consequence of a day being ‘exceptional’.
This guidance can be found in Appendix B to HMRC’s Guidance Note (RDR3) on the SRT. This guidance sets out where ‘exceptional circumstances’ can and cannot be considered for the purpose of the various counts of presence in the UK under the SRT.
For example, while an ‘exceptional’ day will not count towards the 183-day test referred to earlier, it may (in the view of HMRC) count towards some of the SRT tests based on the number of days in which an individual can work in the UK.
Moreover, the SRT provides that the maximum number of days you can claim as ‘exceptional’ in a tax year is 60.
While HMRC is taking a more relaxed approach during the coronavirus pandemic, the two restrictions still apply (at least at present) and so you will still need to look at your position closely.
HMRC’s statement that coronavirus is ‘exceptional’ is welcome. However, you must note the limitations on its scope and not just assume that your day counting concerns are automatically ended by the HMRC statement. Each case must be looked at individually.
Please contact your usual HFMC Wealth contact or email firstname.lastname@example.org if you require further information or any assistance with the above.