Legal
GUEST ARTICLE: On Becoming A Non-Resident For UK Tax Purposes

Becoming a non-resident for UK tax purposes is, as readers can probably guess, not always straightforward. This article examines the dos and don'ts for anyone considering taking this course.
The Duchess of York reportedly wants to become a permanent resident of Switzerland, moving to Valais. Regardless of one's view of a member of the Royal Family heading off for such a country, there are clear tax and other implications of such a move. In this article, John Goodchild, of law firm Pemberton Greenish, drills into the details. This publication is grateful for these insights and invites readers to respond.
It is not always easy or straightforward to become non-resident
for UK tax purposes and you would be well advised to seek advice
from a tax lawyer or accountant as soon as you get the notion
that you might want to move abroad.
The relatively new statutory residence rules are far less opaque
than the old law on tax residence but they are complex and fiddly
and, so, there are pitfalls for the unwary.
Timing is important and it is preferable to formulate a plan
before the UK tax year in which you intend to leave since it is
not always possible to split a UK tax year into a resident period
and a non-resident period.
The circumstances of your move abroad and, in particular, whether
you will be working full-time abroad will determine whether or
not you achieve non-UK resident status.
The first set of tests that your advisor will consider are
the so-called “automatic overseas tests”.
Assuming that you have been UK tax resident during one of three
tax years before you leave you will only achieve “non-resident”
status under these tests if you spend fewer than 16 days in the
UK in a tax year after your departure or you carry out “full-time
work abroad” during such tax year.
The “full-time work abroad” test provides more leeway for an
individual to spend time back in the UK – he or she may spend up
to 90 days in the UK. However, the individual needs to satisfy
the stringent requirements of “full-time work abroad”. If
you are seeking to rely on this test you need to be careful about
“significant breaks” from overseas work and also about the number
of days in which work is carried out in the UK.
You also need to be careful not to trip up over the “automatic UK
tests”. These should be avoidable. But, you need to be careful
where you have a home in the UK, you spend 30 days in that home
in a tax year and you do not have a sufficiently permanent home
outside the UK. The complexities of this rule are beyond this
article but in broad terms it may be helpful to ensure that, if
possible, you let any UK property that you wish to retain
throughout your desired non-resident period, that you keep your
stays there to an absolute minimum and you try to establish as
permanent a home as possible abroad.
If you cannot bring yourself within any of the “automatic
overseas tests” you will need to qualify as non-resident under
the “sufficient ties test”.
As a “leaver” there are five potential ties that are relevant. In
broad terms these are:-
- the family tie – a UK resident spouse or child under 18;
- the accommodation tie – accommodation which is available;
- the work tie – work in the UK for 40 days or more for more than 3 hours per day;
- the 90-day tie – 90 days spent in the UK during one or both the previous two tax years; and
- the country tie – more days spent in the UK than any other single country.
There are, needless to say, complex rules for determining whether
each of the ties is satisfied during a UK tax year.
Once your advisor has determined the number of ties that you
will have with the UK he or she will look at the statutory table
set out below to determine whether or not you are going to be
treated as a non-UK resident in a given tax year.
For the purposes of the table a “day” means a day in which you
are present in the UK at midnight but for some of the ties
presence in the UK during any part of the day will count.
Days spent in UK
Leaver
Less than 16
Always non-UK resident
16 to 45
4 ties = UK
resident
46 to 90
3 ties = UK
resident
91 to 120
2 ties = UK
resident
121 to 182
1 tie = UK resident
183 or more
Always UK resident
As mentioned earlier, it is not always possible to “split” a tax year and, indeed, the starting point is that it is not possible. Consequently, if you are intending to leave the UK part way through a tax year and you wish to achieve non-UK resident status from the point of departure you will need to fit yourself within one of the prescribed cases in which “split year” treatment is afforded. There are particular cases that deal with going to work abroad and also individuals accompanying their partner who is going to work abroad.
If you are successful in achieving non-UK resident status but are not necessarily going to be away from the UK for a significant period of time you need to be aware of the “temporary non-residence” rules. In broad terms, if you have been UK resident for four or more of the seven tax years preceding your year of departure and you are subsequently non-UK resident for 5 years or less, you are liable during the period whilst you are abroad for UK tax on your return on:
- capital gains realised; and
- certain types of income, including foreign income remitted to the UK.
Tax residence is a complex area and however straightforward you may think your circumstances are you need to tread very carefully.