One perhaps unforeseen consequence of the current Covid-19 is that non-UK residents may be unable to leave the UK and therefore exceed their days spent in the UK.
We have been asked by a number of clients and their advisors to clarify the position for individuals who may be affected.
You may be in the unfortunate position of having to stay in a country and not being able to travel elsewhere and/or to return to your country of residence. If this is the case, you may inadvertently become tax resident by overstaying the number of days you should remain in that country.
The good news is that the UK’s statutory residence test (UK Resident/Non-Resident Test) contains special provisions for days spent in the UK as a result of exceptional circumstances. This is defined as including “national or local emergencies such as war, civil unrest or natural disasters” and “a sudden or life-threatening illness or injury”.
The rule applies when exceptional circumstances, beyond the taxpayer’s control, prevent the taxpayer from leaving the UK. However, it is important to note that the taxpayer must leave the UK as soon as the circumstances permit.
While it was clear that if the individual was hospitalised from Covid-19 this would be exceptional circumstances, what was less clear was whether someone caught by travel restrictions or being required to self-isolate, would fall within the exceptional circumstance’s rules.
Helpfully HMRC have published the following guidance:
The UK is currently experiencing the effects of the coronavirus (COVID-19) pandemic. Events resulting from the impact of the virus are changing rapidly and this guidance may change at short notice as situations change.
The coronavirus (COVID-19) pandemic may impact your ability to move freely to and from the UK or, require you to remain unexpectedly in the UK. Whether days spent in the UK can be disregarded due to exceptional circumstances will always depend on the facts and circumstances of each individual case.
However, 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 the circumstances are considered as exceptional.
While the guidance is useful, every situation should be judged on its own merits based on the particular facts of the case. Individuals are advised to keep detailed records to show that they had planned to travel (i.e. evidence of a plane ticket, etc.) and the reasons as why travel could not be completed (i.e. flight cancellations, foreign office advice was not to travel, country to which travel was planned closed it borders, etc.).
Action to Take to Avoid becoming UK Tax Resident due to Unforeseen Circumstances
Please see below a suggested list of action you can take, to help mitigate an unplanned over-stay of days, if you need to:
- Keep records of why you are in the country, and for how long.
- Keep all travel tickets/records.
- Keep any notifications advising you that you cannot leave that particular country.
- It is worth checking the legislation of the country you are in to see if there are exceptions to the usual residency rules. For example, HMRC in the UK provided exemptions during the volcanic ash episode in 2010.
- Have plans to show that you intend to leave the UK as soon as circumstances permit.
All of the above sounds very simple – but can easily be forgotten in difficult and stressful times.
For more advice, please contact Paul Webb or email us at: firstname.lastname@example.org.
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