Statutory residence rules and deeming

The issue

The UK statutory residence test  was introduced in Finance Act 2013 and is now relatively well understood. Please see the following link for a helpful Forbes Dawson chart:

StatutoryResidenceTestFlowchart.pdf (forbesdawson.co.uk)

The rules prescriptively determine whether an individual is UK resident or not, depending on whether they are defined as leaving the UK or arriving in the UK as well as the number of connection factors that the individual has with the UK.

Given that day count dictates whether a person is UK resident or not the question naturally arises as to what is a day? The standard answer is that being present in the UK at midnight is counted as a day – and many people seem to think that this is the end of the story.

However, if certain conditions apply then being present at any time during a day can count as a day. This is known as the deeming rule.

If all the following conditions apply then the deeming rule will usually apply:

• Having been UK resident in 1 or more of the 3 previous tax years.
• Having at least 3 UK ties for the tax year.
• Being present in the UK on more than 30 days in the tax year, without being present at the end of the day.

However the deeming rule will not apply if you meet the third automatic overseas test (relating to overseas workdays) although this can be tough to meet.

If the deeming rule applies then any days (where you are not present at midnight) will count as a days after the first 30 of such days.

Example

Sarah has recently relocated to Jersey (after being UK resident for many years). As Sarah has 3 UK ties (Accommodation, 90 days and family ties) she has been told to ensure her UK days are under 46 days for the year and therefore she spends 38 midnights in the UK during 2021/22. However there are 40 days during the year when she is present in the UK but not at midnight.

As Sarah meets all three conditions detailed above we need to consider the deeming rule. Discounting the first 30 occasions we need to count 10 days by virtue of this rule. Adding the 10 to the 38 midnights puts Sarah on 48 days for 2021/22. Sarah will therefore be UK tax resident for 2021/22.

Forbes Dawson view

As always it is important to know the detail of each client’s circumstances and plans before advising on their residence position. It is very easy for clients to trip up on the less well known conditions and sometimes form an opinion that quick trips in and out of the UK during the day will not count. Great care is required!

 

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