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COVID-19 and the Statutory Residence Test (SRT)

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The impact of COVID-19 has been felt widely across the world, with many countries introducing restrictions of varying degrees in relation to social interaction, essential services and travel, both locally and internationally.

Travel restrictions are a concern for many, particularly in the UK where the Statutory Residency Test (“SRT”) applies a combination of complex rules and day counts to determine an individual’s UK tax residency status.

The question is, therefore, whether an individual’s inability to travel as a result of COVID-19 restrictions means that they may inadvertently become UK resident.

This would mean becoming subject to UK taxes in reference to their worldwide income and gains (with some exceptions), simply because they have been unable to leave the country and have thus spent more days in the UK than they anticipated (or is "permitted") before being considered UK resident.

EXCEPTIONAL CIRCUMSTANCES

The concept of ‘exceptional circumstances’ already existed within the SRT legislation and, where it applies, certain days spent in the UK may be ignored for day-counting purposes if those days are due to exceptional circumstances beyond the individual’s control.

The maximum number of days which can be ignored if exceptional circumstances apply is 60 per tax year, however, it should be stressed that this is a maximum limit rather than an allowance.

HMRC’s guidance sets out that it is difficult to be prescriptive with regards to the type of event which may give rise to exceptional circumstances but suggests that civil unrest, natural disasters, the outbreak of war or a sudden or serious life threatening illness or injury to an individual are likely to be considered exceptional circumstances.

When COVID-19 took hold and many people were forced to either return to the UK, or were unable to leave the UK due to the restrictions imposed, calls were made to the government to clarify whether exceptional circumstances would apply to those who were present in the UK due to the COVID-19 restrictions.

Whilst the only legislative changes that have been made to the SRT are those relating to health care professionals and care workers (or those associated with the research and development of health care equipment or medicines in the fight against coronavirus), HMRC have issued revised guidance dealing specifically with the effects of the pandemic and exceptional circumstances.

It is still highlighted that exceptional circumstances will always be dependent upon the facts and circumstances of each individual case.

However...

The following are accepted as circumstances that would be considered exceptional:

  • The official government advice is not to travel from the UK as a result of the virus
  • You are in quarantine or advised by a health professional or public health guidance to self-isolate in the UK as a result of the virus
  • You are unable to leave due to the closure of international borders, or
  • You are asked to return to the UK temporarily by your employer as a result of the virus.

When full lockdown measures are in place, and it is unlawful to leave the country except for an essential purpose, it stands to reason that it would be difficult for HMRC to argue that you ought to have broken the law in order to leave the country.

WHAT ABOUT NOW I CAN LEAVE?

It should be noted that as soon as restrictions are eased or it is possible to leave the UK, action should be taken to do so. This is because, as set out above, the 60 day maximum is a limit, rather than an entitlement or allowance.

Those who do not leave the UK when they are able to, will risk having days spent in the UK after restrictions are lifted considered as days present, even if they have not reached the 60 day limit for exceptional circumstances.

It will also need to be demonstrable that the individual had the intent to leave the UK but have been prohibited from doing so.

WHEN DO THE EXCEPTIONAL CIRCUMSTANCES NOT APPLY?

There are certain tests within the SRT to which exceptional circumstances will not apply and so, whilst days present may be ignored for the purposes of some tests, they may not be ignored for others.

As a general rule, exceptional circumstances applies to day counts in terms of how long you spend in the UK but will not apply to some of the additional layers within a test or to some of the sufficient ties.

For example, in those tests which specify that there must not be a significant break, exceptional circumstances will not apply when looking at this element of the test (even if it applies elsewhere).

HOW CAN HAMILTON ROSE HELP?

Whilst it may appear clear-cut that the 'exceptional circumstances' provision applies, professional advice should be sought to ensure that all tests remain satisfied and are not impacted by an individual's presence in the UK due to the virus.

HMRC have confirmed that they will not be looking to relax these rules.

Given HMRC's reluctance to change the law any further, or to issue more wide-ranging guidance on how exceptional circumstances and COVID-19 interact, the prudent approach is to try and ensure that you do not breach your normal day count.

However, where this is unavoidable, contemporaneous evidence should be kept to show why it was not possible to leave the UK and consideration should be given as to how to disclose this on the relevant tax return.

We know how HMRC obtain their information and their best lines of "attack". We can therefore ensure that you are well-protected by ensuring that the right type of records are maintained and, where necessary, a contemporaneous opinion is sought regarding your requirement to remain in the UK.

If you or your clients are concerned about your day count in 2020 or HMRC have raised some queries, please do not hesitate to contact us at info@hamiltonrose.tax.

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