This Content Was Last Updated on November 5, 2015 by Jessica Garbett


The issue of whether someone is or is not UK Tax resident has often been a thorny one.

The law around this area is based on case law, often quite old, rather than statute. Historically HMRC booklet IR20, now HMRC 6, set out HMRCs practical interpretation of the case law and was the de facto standard for residence questions.

Recent litigation, notably Gines-Cooper v HMRC, and also Davis & Jame v HMRC, has showed that HMRCs interpretation of the non resident aspect of these rules for those leaving the UK is tighter than thought. This probably reflects HMRC tightening interpretations up in response to people arranging to conduct their affairs by the letter of the guidance rather than its spirit – and bear in mind that as it is case law based there is no black and white statute to fall back on.

There are two areas where the boundaries appear to have changed, and the courts accept HMRCs views.

First is for people leaving the UK to work full time abroad.

Previously to get non resident treatment for UK taxes it was broadly necessary to show (i) you were going abroad to work full under a contract of employment and (ii) that your return visits to the UK were less than 183 days in any one tax year and 91 days average over four tax years.

Now HMRC are putting more emphasis on the quality of the departure process – for example someone may have gone abroad to work, but was it full time?

More attention will be needed to the nature of the work abroad, the time it occupies, and that no duties are carried out in the UK.

As an aside if you left the UK to work abroad but then returned to the UK within a month for 180 days, which in theory is posible if youor return visits in the next for years were much shorter, then can it actually be said you gone abroad to work full time – most full time staff don’t get 180 days off.

The second area of change is for those leaving the UK permanently or indefinitely, other than for working full time under a contract of employment. Again the 183 days / 91 days average return visits tests apply, but where the rules and interepretations have changed is on ties to the UK.

It is not a requirment of achiveing non residence status that any porperty, eg your former home in the UK, has been disposed off, but it is a requirement that you must have taken steps to put roots down abroad, eg buying a home, creating a socail life, engaging a doctor.

What HMRC are now flagging is that if you move abroad but your family remains in the UK, your main home is in the UK albeit only occuoped 90 days a year, your doctor is in the UK, etc, then there is insufficent break in ties with the UK for non residence to apply.

NB the “ties” issue only applies to those not going abroad to wrok full time, so it may apply, for example, to someone emigrating for semi retirement or for a gap year.