Tax residence and COVID-19

The COVID-19 pandemic has disrupted travel globally, resulting in some individuals spending more time in the UK than planned. HMRC has published new guidance, which includes clarity on how COVID-19 restrictions affect the statutory residence test (SRT) for individuals.

Background

A key indicator of UK tax residence status is the number of days spent in the UK. The UK’s Statutory Residence Test (SRT) legislation allows for up to 60 days spent in the UK due to ‘exceptional circumstances’ to be disregarded. There is no set definition of exceptional circumstances, as this depends on the facts and circumstances of each individual case.

HMRC previously published guidance confirming the specific circumstances, in relation to COVID-19, that could be considered as exceptional. The guidance states that circumstances will be considered as exceptional if you:

• are quarantined or advised by a health professional or public health guidance to self-isolate in the UK as a result of the virus;
• find yourself advised by official Government advice not to travel from the UK as a result of the virus;
• are unable to leave the UK as a result of the closure of international borders, or
• are asked by your employer to return to the UK temporarily as a result of the virus.

HMRC: international tax clarifications due to COVID-19

HMRC has now published additional guidance, which is structured as a set of questions and answers, to provide further clarity on various matters and in particular the effect of COVID-19 restrictions on the SRT. Some of the more important points are:

Individuals

• if exceptional circumstances are claimed due to the closure of international borders, individuals must be able to demonstrate that they made every effort to leave once those restrictions had been lifted;
• days spent working in the UK for over 3 hours will count as UK workdays, even if they would have been disregarded under exceptional circumstances;
• those who are normally non-resident, but came to the UK to assist a vulnerable relative in the pandemic, may qualify for exceptional circumstances depending on the facts of the case;
• where the SRT rules consider whether or not children being in full-time education in the UK counts as a ‘tie’ to a parent, the closure of schools will not jeopardise their education status provided specific conditions are met;
• there is no relief under the deemed domiciled rules for an unexpected year of residence;
• if an individual, who normally works abroad with income from overseas duties taxed on the remittance basis, has had to carry out those duties in the UK, these will be treated as earnings in respect of UK duties and taxed on the arising basis; and
• treaty residence will not change due to a 'temporary dislocation'.

Companies

• HMRC has confirmed that where travel restrictions have impacted company management, this will not necessarily result in a change of a company's tax residence, or cause the company to have a UK permanent establishment.

Employment – tax on UK duties

Income relating to UK employment duties can be taxable in the UK regardless of the individual’s residence status. There may therefore be a number of individuals who face potential UK tax on sums earned in the current year while stuck in the UK, even if they are able to rely on days being discounted for exceptional circumstances under the SRT.

Most double tax treaties do, however, provide an exemption from UK tax where a non-UK resident individual receives employment income from a non-UK resident employer, provided specific day count tests are met. The tests are separate from those set out in the SRT and need to be considered carefully as they work in a slightly unusual way, and vary from one treaty to another.

How can S&W help?

Our team can help you review your UK tax residence position and advise on the extent to which any time spent in the UK due to COVID-19 travel restrictions can be treated as exceptional, as well as the effect on your UK tax position of time spent in the UK working.

We can advise on the implications of either becoming or ceasing to be UK resident and any planning that could be considered in advance of a change in your residence status. We can consider the interaction between your residence and deemed-domicile position, if relevant.

We can also advise on any proactive steps that can be taken in order to alter your UK residence position should you wish to consider this.

If you would like any further details please contact your usual Smith & Williamson adviser, or one of the contacts on this page.

Ref: NTNPW1020136

DISCLAIMER
By necessity, this briefing can only provide a short overview and it is essential to seek professional advice before applying the contents of this article. This briefing does not constitute advice nor a recommendation relating to the acquisition or disposal of investments. No responsibility can be taken for any loss arising from action taken or refrained from on the basis of this publication. Details correct at time of writing.