Session 2012 - 13
Internet Publications
Other Bills before Parliament

Finance (No. 2) Bill


Finance (No. 2) Bill
Schedule 43 — Statutory residence test
Part 2 — Key concepts

508

 

      (6)  

For the purposes of this paragraph, half-term breaks and other breaks when

teaching is not provided during a term are considered to form part of “term-

time”.

Accommodation tie

34    (1)  

P has an accommodation tie for year X if—

5

(a)   

P has a place to live in the UK,

(b)   

that place is available to P during year X for a continuous period of

at least 91 days, and

(c)   

P spends at least one night at that place in that year.

      (2)  

If there is a gap of fewer than 16 days between periods in year X when a

10

particular place is available to P, that place is to be treated as continuing to

be available to P during the gap.

      (3)  

P is considered to have a “place to live” in the UK if—

(a)   

P’s home or at least one of P’s homes (if P has more than one) is in

the UK, or

15

(b)   

P has a holiday home or temporary retreat (or something similar) in

the UK, or

(c)   

accommodation is otherwise available to P where P can live when P

is in the UK.

      (4)  

Accommodation may be “available” to P even if P holds no estate or interest

20

in it and even has no legal right to occupy it.

      (5)  

If the accommodation is the home of a close relative of P’s, sub-paragraph

(1)(c) has effect as if for “at least one night” there were substituted “a total of

at least 16 nights”.

      (6)  

A “close relative” is—

25

(a)   

a parent or grandparent,

(b)   

a brother or sister,

(c)   

a child aged 18 or over, or

(d)   

a grandchild aged 18 or over,

           

in each case, including by half-blood or by marriage or civil partnership.

30

Work tie

35    (1)  

P has a work tie for year X if P works in the UK for at least 40 days (whether

continuously or intermittently) in year X.

      (2)  

For these purposes, P works in the UK for a day if P does more than 3 hours’

work in the UK on that day.

35

36    (1)  

This paragraph applies for the purposes of paragraph 35.

      (2)  

It applies in cases where P has a relevant job on board a vehicle, aircraft or

ship.

      (3)  

When making a cross-border trip as part of that job—

(a)   

if the trip begins in the UK, P is assumed to do more than 3 hours’

40

work in the UK on the day on which it begins,

(b)   

if the trip ends in the UK, P is assumed to do fewer than 3 hours’

work in the UK on the day on which it ends.

 
 

Finance (No. 2) Bill
Schedule 43 — Statutory residence test
Part 3 — Split year treatment

509

 

      (4)  

Those assumptions apply regardless of how late in the day the trip begins or

ends (even if it begins or ends just before midnight).

      (5)  

For the purposes of sub-paragraph (3)(a), it does not matter whether the trip

ends on that same day.

      (6)  

A day that falls within both paragraph (a) and paragraph (b) of sub-

5

paragraph (3) is to be treated as if it fell only within paragraph (a).

      (7)  

In the case of a cross-border trip to or from the UK that is undertaken in

stages—

(a)   

the day on which the trip begins or, as the case may be, ends is the

day on which the stage of the trip that involves crossing the UK

10

border begins or ends, and

(b)   

accordingly, any day on which a stage is undertaken by P solely

within the UK must (if it lasts for more than 3 hours) be counted

separately as a day on which P does more than 3 hours’ work in the

UK.

15

90-day tie

37         

P has a 90-day tie for year X if P has spent more than 90 days in the UK in—

(a)   

the tax year preceding year X,

(b)   

the tax year preceding that tax year, or

(c)   

each of those tax years separately.

20

Country tie

38    (1)  

P has a country tie for year X if the country in which P meets the midnight

test for the greatest number of days in year X is the UK.

      (2)  

If—

(a)   

P meets the midnight test for the same number of days in year X in

25

two or more countries, and

(b)   

that number is the greatest number of days for which P meets the

midnight test in any country in year X,

           

P has a country tie for year X if one of those countries is the UK.

      (3)  

P meets the “midnight test” in a country for a day if P is present in that

30

country at the end of that day.

Part 3

Split year treatment

Introduction

39         

This Part of this Schedule—

35

(a)   

explains when, as respects an individual, a tax year is a split year,

(b)   

defines the overseas part and the UK part of a split year, and

(c)   

amends certain enactments to provide for special charging rules in

cases involving split years.

 
 

Finance (No. 2) Bill
Schedule 43 — Statutory residence test
Part 3 — Split year treatment

510

 

40    (1)  

The effect of a tax year being a split year is to relax the effect of paragraph

2(3) (which treats individuals who are UK resident “for” a tax year as being

UK resident at all times in that year).

      (2)  

When and how the effect of paragraph 2(3) is relaxed is defined in the special

charging rules introduced by the amendments made by this Part.

5

      (3)  

Subject to those special charging rules (and any other special charging rules

for split years that may be introduced in the future), nothing in this Part

alters an individual’s residence status for a tax year or affects his or her

liability to tax.

41         

This Part—

10

(a)   

does not apply in determining the residence status of personal

representatives, and

(b)   

applies to only a limited extent in determining the residence status of

the trustees of a settlement (see section 475 of ITA 2007 and section

69 of TCGA 1992, as amended by this Part).

15

42         

The existence of special charging rules for cases involving split years is not

intended to affect any question as to whether an individual would fall to be

regarded under double taxation arrangements as a resident of the UK.

Definition of a “split year”

43    (1)  

As respects an individual, a tax year is a “split year” if—

20

(a)   

the individual is resident in the UK for that year, and

(b)   

the circumstances of the case fall within—

(i)   

Case 1, Case 2 or Case 3 (cases involving actual or deemed

departure from the UK), or

(ii)   

Case 4, Case 5, Case 6, Case 7 or Case 8 (cases involving actual

25

or deemed arrival in the UK).

      (2)  

The 8 Cases are described in paragraphs 44 to 51.

      (3)  

In those paragraphs, the individual is referred to as “the taxpayer” and the

tax year as “the relevant year”.

      (4)  

In applying Part 2 of this Schedule to those paragraphs, for “P” read “the

30

taxpayer”.

Case 1

44    (1)  

The circumstances of a case fall within Case 1 if they are as described in sub-

paragraphs (2) to (4).

      (2)  

The taxpayer was resident in the UK for the previous tax year (whether or

35

not it was a split year).

      (3)  

There is at least one period (consisting of one or more days) that—

(a)   

begins with a day that—

(i)   

falls within the relevant year, and

(ii)   

is a day on which the taxpayer does more than 3 hours’ work

40

overseas,

(b)   

ends with the last day of the relevant year, and

(c)   

satisfies the overseas work criteria.

 
 

Finance (No. 2) Bill
Schedule 43 — Statutory residence test
Part 3 — Split year treatment

511

 

      (4)  

The taxpayer is not resident in the UK for the next tax year because the

taxpayer meets the third automatic overseas test for that year (see paragraph

14).

      (5)  

A period “satisfies the overseas work criteria” if—

(a)   

the taxpayer works sufficient hours overseas, as assessed over that

5

period,

(b)   

during that period, there are no significant breaks from overseas

work,

(c)   

the number of days in that period on which the taxpayer does more

than 3 hours’ work in the UK does not exceed the permitted limit,

10

and

(d)   

the number of days in that period falling within sub-paragraph (6)

does not exceed the permitted limit.

      (6)  

A day falls within this sub-paragraph if—

(a)   

it is a day spent by the taxpayer in the UK, but

15

(b)   

it is not a day that is treated under paragraph 23(4) as a day spent by

the taxpayer in the UK.

      (7)  

To work out whether the taxpayer works “sufficient hours overseas” as

assessed over a given period, apply paragraph 14(3) but with the following

modifications—

20

(a)   

for “P” read “the taxpayer”,

(b)   

for “year X” read “the period under consideration”,

(c)   

for “365 (or 366 if year X includes 29 February)” read “the number of

days in the period under consideration”, and

(d)   

in paragraph 28(9)(b), as it applies for the purposes of step 3, for “30”

25

read “the permitted limit”.

      (8)  

The permitted limit is—

(a)   

for sub-paragraphs (5)(c) and (7)(d), the number found by reducing

30 by the appropriate number, and

(b)   

for sub-paragraph (5)(d), the number found by reducing 90 by the

30

appropriate number.

      (9)  

The appropriate number is the result of—equation: cross[char[A],over[char[B],num[12.0000000000000000,"12"]]]

           

where—

  “A” is—

(a)   

30, for sub-paragraphs (5)(c) and (7)(d), or

35

(b)   

90, for sub-paragraph (5)(d), and

“B” is the number of whole months in the part of the relevant year

before the day mentioned in sub-paragraph (3)(a).

Case 2

45    (1)  

The circumstances of a case fall within Case 2 if they are as described in sub-

40

paragraphs (2) to (6).

      (2)  

The taxpayer was resident in the UK for the previous tax year (whether or

not it was a split year).

 
 

Finance (No. 2) Bill
Schedule 43 — Statutory residence test
Part 3 — Split year treatment

512

 

      (3)  

The taxpayer has a partner whose circumstances fall within Case 1 for—

(a)   

the relevant year, or

(b)   

the previous tax year.

      (4)  

On a day in the relevant year, the taxpayer moves overseas so the taxpayer

and the partner can continue to live together while the partner is working

5

overseas.

      (5)  

In the part of the relevant year beginning with the deemed departure day—

(a)   

the taxpayer has no home in the UK at any time, or has homes in both

the UK and overseas but spends the greater part of the time living in

the overseas home, and

10

(b)   

the number of days that the taxpayer spends in the UK does not

exceed the permitted limit.

      (6)  

The taxpayer is not resident in the UK for the next tax year.

      (7)  

If sub-paragraph (3)(a) applies, the “deemed departure day” is the later of—

(a)   

the day mentioned in sub-paragraph (4), and

15

(b)   

the first day of what is, for the partner, the overseas part of the

relevant year as defined for Case 1 (see paragraph 53).

      (8)  

If sub-paragraph (3)(b) applies, the “deemed departure day” is the day

mentioned in sub-paragraph (4).

      (9)  

The permitted limit is the number found by reducing 90 by the appropriate

20

number.

     (10)  

The appropriate number is the result of—equation: cross[char[A],over[char[B],num[12.0000000000000000,"12"]]]

           

where—

  “A” is 90, and

“B” is the number of whole months in the part of the relevant year

25

before the deemed departure day.

Case 3

46    (1)  

The circumstances of a case fall within Case 3 if they are as described in sub-

paragraphs (2) to (6).

      (2)  

The taxpayer was resident in the UK for the previous tax year (whether or

30

not it was a split year).

      (3)  

At the start of the relevant year the taxpayer had one or more homes in the

UK but—

(a)   

there comes a day in the relevant year when P ceases to have any

home in the UK, and

35

(b)   

from then on, P has no home in the UK for the rest of that year.

      (4)  

In the part of the relevant year beginning with the day mentioned in sub-

paragraph (3)(a), the taxpayer spends fewer than 16 days in the UK.

      (5)  

The taxpayer is not resident in the UK for the next tax year.

 
 

Finance (No. 2) Bill
Schedule 43 — Statutory residence test
Part 3 — Split year treatment

513

 

      (6)  

At the end of the period of 6 months beginning with the day mentioned in

sub-paragraph (3)(a), the taxpayer has a sufficient link with a country

overseas.

      (7)  

The taxpayer has a “sufficient link” with a country overseas if and only if—

(a)   

the taxpayer is considered for tax purposes to be a resident of that

5

country in accordance with its domestic laws, or

(b)   

the taxpayer has been present in that country (in person) at the end

of each day of the 6-month period mentioned in sub-paragraph (6),

or

(c)   

the taxpayer’s only home is in that country or, if the taxpayer has

10

more than one home, they are all in that country.

Case 4

47    (1)  

The circumstances of a case fall within Case 4 if they are as described in sub-

paragraphs (2) to (4).

      (2)  

The taxpayer was not resident in the UK for the previous tax year.

15

      (3)  

At the start of the relevant year, the taxpayer did not meet the only home

test, but there comes a day in the relevant year when that ceases to be the

case and the taxpayer then continues to meet the only home test for the rest

of that year.

      (4)  

For the part of the relevant year before that day, the taxpayer does not have

20

sufficient UK ties.

      (5)  

The “only home test” is met if—

(a)   

the taxpayer has only one home and that home is in the UK, or

(b)   

the taxpayer has more than one home and all of them are in the UK.

      (6)  

Paragraphs 17 to 20 (and Part 2 of this Schedule so far as it relates to those

25

paragraphs) apply for the purposes of sub-paragraph (4) with the following

adjustments—

(a)   

references in those paragraphs and that Part to year X are to be read

as references to the part of the relevant year mentioned in sub-

paragraph (4), and

30

(b)   

each number of days mentioned in the first column of the Table in

paragraphs 18 and 19 is to be reduced by the appropriate number.

      (7)  

The appropriate number is found by multiplying the number of days, in

each case, by—equation: over[char[A],num[12.0000000000000000,"12"]]

           

where “A” is the number of whole months in the part of the relevant year

35

beginning with the day mentioned in sub-paragraph (3).

      (8)  

Sub-paragraph (6)(a) does not apply to the references to year X in

paragraphs 32(1)(b) and 33 of this Schedule (which relate to the residence

status of family members) so those references must continue to be read as

references to year X.

40

 
 

Finance (No. 2) Bill
Schedule 43 — Statutory residence test
Part 3 — Split year treatment

514

 

Case 5

48    (1)  

The circumstances of a case fall within Case 5 if they are as described in sub-

paragraphs (2) and (3).

      (2)  

The taxpayer was not resident in the UK for the previous tax year.

      (3)  

There is at least one period of 365 days in respect of which the following

5

conditions are met—

(a)   

the period begins with a day that—

(i)   

falls within the relevant year, and

(ii)   

is a day on which the taxpayer does more than 3 hours’ work

in the UK,

10

(b)   

in the part of the relevant year before the period begins, the taxpayer

does not have sufficient UK ties,

(c)   

the taxpayer works sufficient hours in the UK, as assessed over the

period,

(d)   

during the period, there are no significant breaks from UK work, and

15

(e)   

at least 75% of the total number of days in the period on which the

taxpayer does more than 3 hours’ work are days on which the

taxpayer does more than 3 hours’ work in the UK.

      (4)  

To work out whether the taxpayer works “sufficient hours in the UK” as

assessed over a given period, apply paragraph 9(2) but for “P” read “the

20

taxpayer”.

      (5)  

Paragraphs 17 to 20 (and Part 2 of this Schedule so far as it relates to those

paragraphs) apply for the purposes of sub-paragraph (3)(b) with the

following adjustments—

(a)   

references in those paragraphs and that Part to year X are to be read

25

as references to the part of the relevant year mentioned in sub-

paragraph (3)(b), and

(b)   

each number of days mentioned in the first column of the Table in

paragraphs 18 and 19 is to be reduced by the appropriate number.

      (6)  

The appropriate number is found by multiplying the number of days, in

30

each case, by—equation: over[char[A],num[12.0000000000000000,"12"]]

           

where “A” is the number of whole months in the part of the relevant year

beginning with the day on which the 365-day period in question begins.

      (7)  

Sub-paragraph (5)(a) does not apply to the references to year X in

paragraphs 32(1)(b) and 33 of this Schedule (which relate to the residence

35

status of family members) so those references must continue to be read as

references to year X.

Case 6

49    (1)  

The circumstances of a case fall within Case 6 if they are as described in sub-

paragraphs (2) to (4).

40

      (2)  

The taxpayer was not resident in the UK for the previous tax year because

the taxpayer met the third automatic overseas test for that year (see

paragraph 14).

 
 

 
previous section contents continue
 

© Parliamentary copyright
Revised 28 March 2013