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What does "absent from the UK for at least a whole tax year" actually mean?

On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

A taxpayer left the UK in 2006-2007 intending to work abroad for
several years.

She returned to the UK for about 10 days in 2007-2008 tax year.

She returned to the UK on 11 April 2008 and started work in the UK on
13 April 2008.

The HMRC booklet: Residence, Domicile and the Remittance Basis

http://www.hmrc.gov.uk/cnr/hmrc6.pdf

"8.5 Leaving the UK to work abroad as an employee
If you are leaving the UK to work abroad full-time, you will only
become
not resident and not ordinarily resident from the day after the day of
your
departure, as long as:
• you are leaving to work abroad under a contract of employment for at
least a whole tax year
• you have actually physically left the UK to begin your employment
abroad
and not, for example, to have a holiday until you begin your
employment
• you will be absent from the UK for at least a whole tax year
• your visits to the UK after you have left to begin your overseas
employment will
- total less than 183 days in any tax year, and
- average less than 91 days a tax year. This average is taken over the
period of absence up to a maximum of four years – see 8.3 which will
show you how to work out this average. Any days you spend in the UK
because of exceptional circumstances beyond your control, for example
an illness which prevents you from travelling, are not normally
counted
for this purpose.
If you do not meet all of these conditions, you will remain resident
and
ordinarily resident in the UK unless paragraph 8.2 applies to you.
If your employment comes to an end and you do not return to the UK it
will
be necessary to consider if you continue to be not resident and not
ordinarily resident in the UK."

A11. Residence in the United Kingdom: year of commencement or
cessation of residence

http://www.hmrc.gov.uk/manuals/senew/se42850.htm

"The Income and Corporation Taxes Acts make no provision for splitting
tax years in relation to residence and an individual who is resident
in the United Kingdom for any year of assessment is chargeable on the
basis that he is resident for the whole year.
But where an individual:

comes to the United Kingdom to take up permanent residence or to stay
for at least two years, or
ceases to reside in the United Kingdom if he has left for permanent
residence abroad,
liability to United Kingdom tax which is affected by residence is
computed by reference to the period of his residence here during the
year. It is a condition that the individual should satisfy the Board
of Inland Revenue that prior to his arrival he was, or on his
departure is, not ordinarily resident in the United Kingdom. The
concession would not apply, for example, where an individual who had
been ordinarily resident in the United Kingdom left for intended
permanent residence abroad but returned to reside here before the end
of the tax year following the tax year of departure.
This concession is extended to the years of departure and return
where, subject to certain conditions, an individual goes abroad for
full time service under a contract of employment. These conditions
are-

the individual absence from the United Kingdom and the employment
itself both extend over a period covering a complete tax year, and
any interim visits to the United Kingdom during the period do not
amount to
183 days or more in any tax year, or
an average of 91 days or more in a tax year (the average is taken over
the period of absence up to a maximum of four years, and
for years up to and including 1992-93, all the duties of the
employment are performed abroad or any duties the individual performs
in the United Kingdom are incidental to duties abroad.
Where the concession applies and the tax year is split, Section 128
Finance Act 1995 (limit on income chargeable on non-residents: Income
Tax) does not apply for the period for which an individual is treated
as not resident. That Section only applies to complete years of non-
residence."

My view is that "the individual absence from the United Kingdom and
the employment itself both extend over a period covering a complete
tax year" means the taxpayer should not visit the UK in the tax year
but when I phone HMRC they seem to think that spending 10 days in the
UK in the tax year still counts as absence from the UK!

Can anybody shed any light on this?



On Wed, 26 Aug 2009 12:15:26 GMT, Ronald Raygun <...@localhost.localdomain

I would interpret "individual absence" as a period when the person
*resided* abroad, as opposed to physically being away for the entire
duration. Therefore spending a few (as many as 182, apparently)
days visiting the UK during a prolonged absence would not convert
this into two individual absences.

But, if you're looking for vague bits, what does the following mean?

Does it mean the contract needs to be in place before you leave?
Does it mean the contract must be for at least a year's work, or
does the "at least for" apply only to the leaving? What if you leave
for a two month contract hoping for it to be extended or for other
opportunities of work to arise? And why does there need to be a
contract of employment? What if you leave to work on a self-employed
basis?

Does this mean that you *expect* at time of leaving that the absence
will last that long, or does it mean that only once it has in fact
lasted that long will you retrospectively count as having been
absent from the date of leaving?

On Wed, 26 Aug 2009 09:03:40 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 26 Aug, 13:15, Ronald Raygun <...@localhost.localdomainI've not considered absence to relate to residence in the situation
where you are deciding residence based on absence!

The guidance says: "If you do not meet all of these conditions" but
then they appear to ignore one condition if you satisfy other
conditions!

Total madness.

Yes, otherwise you are leaving on mere speculation.

It applies to the employment otherwise they would have said: "you are
leaving for at least a whole tax year to work abroad under a contract
of employment"

I don't think HMRC place much reliance on "hope"!

8.8 Leaving the UK to become self-employed abroad
If you are leaving the UK to work abroad for yourself in a trade,
profession
or vocation, then as long as your working circumstances are similar to
those
outlined in paragraph 8.5, you will be taxed in the same way.

You need evidence to support your absence from the UK for at least a
whole tax year, eg. contract of employment, etc.

If you can't provide sufficient evidence you would apply
retrospectively.

On Wed, 26 Aug 2009 17:24:17 +0100, Alan Ferris <...@yahoo.co.uk

On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

No, see 8.3 and the 91 day average rule

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 26 Aug, 17:24, Alan Ferris <...@yahoo.co.ukI understand there are other conditions but IR20 says: "If you do not
meet all of these conditions, you will remain resident
and ordinarily resident in the UK "

Why do they ignore the absent from UK condition?

On Thu, 27 Aug 2009 18:30:37 +0100, Alan Ferris <...@yahoo.co.uk

On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

They don't, they tell you what they classify as an absence and how
much time can be spent in the UK. What is it you fail to grasp about
splitting years?

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Thu, 27 Aug 2009 10:59:24 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 27 Aug, 18:30, Alan Ferris <...@yahoo.co.uk
Where do they say what they class as an absence? I assume you will get
this wrong because you don't have a clue but go ahead.

I understand about splitting years. I am talking about "absence" from
the UK.


On Fri, 28 Aug 2009 07:53:11 +0100, Alan Ferris <...@yahoo.co.uk

On Thu, 27 Aug 2009 10:59:24 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

Try reading again 8.3 where they clearly state how many days you can
spend in the UK and be considered absent.

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Fri, 28 Aug 2009 01:47:21 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 28 Aug, 07:53, Alan Ferris <...@yahoo.co.uk8.3 explains how you calculate average visits to the UK. Average
visits are referred to in a separate condition:

"average less than 91 days a tax year. This average is taken over the
period of absence up to a maximum of four years – see 8.3 which will
show you how to work out this average. Any days you spend in the UK
because of exceptional circumstances beyond your control, for example
an illness which prevents you from travelling, are not normally
counted for this purpose."

Nobody else has disagreed with me and you can't raise anything of
relevance so because you don't seem to understand I will summarise the
problem.

One of the conditions states: “you are leaving to work abroad under a
contract of employment for at least a whole tax year”

All of the conditions are relevant because of: “If you do not meet
all of these conditions, you will remain resident and ordinarily
resident in the UK”

Given the condition at the top refers to working abroad for at least a
whole tax year, what does this condition add?: “you will be absent
from the UK for at least a whole tax year”

Surely that must refer to physical absence otherwise it is covered in
the condition at the top and therefore unnecessary.

On Fri, 28 Aug 2009 21:37:55 +0100, Alan Ferris <...@yahoo.co.uk

On Fri, 28 Aug 2009 01:47:21 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

No. For I could be leaving to work abroad for the tax year, but
return for every weekend and other days as long as I do not exceed the
186 days I am considered absent. This was clearly pointed out to you
on Accountancy web....why did you not grasp it then?

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Fri, 28 Aug 2009 18:22:49 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 28 Aug, 21:37, Alan Ferris <...@yahoo.co.ukYet again you fail to answer the question. You must be too stupid to
understand.

What does the condition "you will be absent from the UK for at least a
whole tax year" add to the list of other conditions?

You don't seem to understand the difference between how HMRC use the
split year rules and their own published guidance.

Nobody on AccountingWEB - to give the website it's correct name -
maybe you have difficulty with words? - has explained why HMRC use the
rules differently from their own published guidance either.

Let's make it simple. What about this list of rules?

1. You have to be over 18,
2. You have to be under 65, and
3. You cannot be 12.

All of the above rules have to be met.

Rule 3 is irrelevant because it is covered by rule 1.

Let us call the following condition rule 1: “you are leaving to work
abroad under a
contract of employment for at least a whole tax year”

Let us call the following condition rule 2: "you will be absent from
the UK for at least a whole tax year"

What does rule 2 add to rule 1?

Exactly, all you logical people out there can see that rule 2 adds
nothing unless absent means you cannot return even for holidays. If
you could return for holidays then rule 1 is sufficient.

Ferrit, your brain is obviously not designed for understanding the
above. I expect a: "But this goes to 11" statement now.


On Sat, 29 Aug 2009 09:14:32 +0100, Alan Ferris <...@yahoo.co.uk

On Fri, 28 Aug 2009 18:22:49 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

It allows for you working abroad and allows split tax year treatment
if you can answer you will be gone for a full year.

You now do not have to be leaving for employment, you may have left
for any reason. Rule added at law change.

Rule 1 only covers those employed abroad. Not those who are not
employed but overseas anyway.

No it is clear you have the problem.

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Sat, 29 Aug 2009 08:18:44 GMT, Ronald Raygun <...@localhost.localdomain

This is incorrect. Your interpretation applies rule 1 OR rule 2,
but the context requires that rule 1 AND rule 2 must apply.

On Sat, 29 Aug 2009 16:55:26 +0100, Alan Ferris <...@yahoo.co.uk

On Sat, 29 Aug 2009 08:18:44 GMT, Ronald Raygun
<...@localhost.localdomain

You can leave with the intent to work under contract for the whole
year. However that contract may cease and you may still stay abroad
without that employment.

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Sat, 29 Aug 2009 16:07:30 GMT, Ronald Raygun <...@localhost.localdomain

Agreed.

On Sat, 29 Aug 2009 08:15:59 GMT, Ronald Raygun <...@localhost.localdomain

I don't think so. What does rule 1 mean?

For one thing, it depends on what it means by "to". :-)

Yes, really. It could mean "with the intention of". If so, it's easy
to answer your question: Rule 1 requires that you *intend*, at the time
you leave, to work abroad for the stated time, to which rule 2 adds that
you are *in fact* absent for that long.

Of course "to" could simply mean "in order to", but we still need
to analyse the wording to see what exactly the phrase "for at least
a whole tax year" attaches to. There are three possibilities:
(1) leaving, (2) working, (3) the contract. Case 3 boils down to
the same issue of intent already mentioned, given that contracts can
be broken or renegotiated. Case 1 seems to be the one which aligns
with your interpretation that rule 2 would add nothing, however I
think case 2, or perhaps a combination of 2 and 3, is likeliest:

You leave in order "to work for .. a .. year". There is still an
implication of intent because once you've actually left, the nature
of the work under the contract is subject to change (the new employer
could transfer you to a UK office), or the terms of the contract could
be renegotiated (e.g. its duration shortened), or you could resign
or get fired.

So we are still stuck with the interpretation that rule 1 might
imply only an intention of absence, and rule 2 adds that there must
be actual absence. Rule 2 cannot therefore be taken to imply that
the absence must be total to the extent that under no circumstances
must you set foot on UK soil for the entire duration of the "absence",
and so it is natural to apply the definition of "absence" given
elsewhere in the rules also to its use within rule 2, i.e. that the
absence admits a limited amount of presence.

In any case, even if you do in fact *work* exclusively abroad, you're
not going to be working 7/52, and there is no earthly reason why the
tax rules should wish to prevent you spending your holidays in the UK.

On Sat, 29 Aug 2009 17:19:51 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 29 Aug, 09:15, Ronald Raygun <...@localhost.localdomain
If they think it's ok to spend holidays and certain other activities
in the UK why don't they say so?

It's better than using a word that is incorrect.

On Sun, 30 Aug 2009 08:19:04 +0100, Alan Ferris <...@yahoo.co.uk

On Sat, 29 Aug 2009 17:19:51 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

They do!

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Sat, 29 Aug 2009 17:18:00 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 29 Aug, 09:15, Ronald Raygun <...@localhost.localdomain
"Absence" then has a very unusual meaning. I don't think you can
change what a word means simply because you don't like what the use of
the word requires.

Why didn't HMRC simply refer to start and end of a period of
employment abroad if they are happy for taxpayers to return for
holidays?

If I say I have been absent from London all week and somebody says
that they have seen me in London that week what would anybody think if
I said there's nothing wrong with being in London so I was still
absent!

On Sun, 30 Aug 2009 08:21:33 +0100, Alan Ferris <...@yahoo.co.uk

On Sat, 29 Aug 2009 17:18:00 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

I have been absent from work due to illness, yet I have still visited
my work to drop off a sick note. Your logic now says I was not absent
from work and therefore did not need the sick note as a half hour
attendance stops me being absent.

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Mon, 31 Aug 2009 02:39:22 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 30 Aug, 08:21, Alan Ferris <...@yahoo.co.ukAs usual you are confused. You needed a sick note because you were not
working.

On Mon, 31 Aug 2009 16:28:09 +0100, Alan Ferris <...@yahoo.co.uk

On Mon, 31 Aug 2009 02:39:22 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

But you miss the point, was I absent from work or wasn't I? Just
because I spent 1/2 hour there does not mean I was not absent due to
illness.

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Sun, 30 Aug 2009 09:33:33 GMT, Ronald Raygun <...@localhost.localdomain

I don't think it's such an unusual meaning. Not many concepts are
always applied in a black and white fashion, they admit to shades of
gray. In this case HMRC (or possibly even Parliament itself) chose
to define absence for tax purposes as involving a physical absence
which is only predominant rather than complete.

Presumably because they are happy for taxpayers to return for any
reason, not just for holidays, and also because they are happy for
employment to be the reason for beginning the absence but not
necessarily for sustaining its entire duration. But mostly because
they didn't want to have to repeat a long phrase throughout their
documents; they needed a single word to describe the "period of
being abroad", and "absence" seemed closest at hand.

OK, in the absence (heh!) of any additional information, "absent all
week" would normally be taken to imply a 0% presence. But take out
the word "all" and that's no longer the case.

If you said you were "absent that week", it would only mean that your
presence during that week was less than 100%. Context might add an
implication that presence was very much less than 100%, perhaps even
much less than 50%, but we don't know. You'd need to provide more
detail if it were necessary to dispel the vagueness.

In the HMRC case, they *have* provided more detail, by defining that
they take "absence for a whole tax year" to mean that you are more
absent than present, to the tune of your presence not exceeding 182
days in any one tax year, and averaging no more than 91 days per tax
year over the whole (potentially multi-year) period of absence.

On Mon, 31 Aug 2009 02:49:57 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 30 Aug, 10:33, Ronald Raygun <...@localhost.localdomainIt would be simply to give a definition.

What about absence for a full tax year? Doesn't that imply a 0%
presence?

This is my point. One condition explains that the absence for
employment has to be over a full tax year and another two conditions
give the 182 day rule and 91 day rule. There's the statement that all
conditions need to apply. Why have another statement which seems to
repeat the full tax year rule if "absence" doesn't mean absence?

On Mon, 31 Aug 2009 12:31:32 GMT, Ronald Raygun <...@localhost.localdomain

No, because my condition "in the absence of any additional information"
is not satisfied: The *have* given additional information which
clarifies what "absence" means.

Let's revisit the extract from 8.5 which you posted originally. It
gives four conditions which must all be met (in this case in order
for the period of non-residence to commence on the day after your
departure).

Condition 1 deals with the purpose of your leaving.

Condition 2 deals with tacking a holiday onto the beginning.

Condition 3 is that your absence must last for at least a whole tax year.

Condition 4 deals with "visits to the UK after you have left to begin your
overseas employment".

It is pretty unambiguously clear that the "visits" in condition 4 are
expected to occur *during* the "absence" in condition 3 and must therefore
of necessity interrupt it. Clearly therefore condition 3 does not require
the absence to be absolutely uninterrupted.

Condition 4 clarifies that the "absence" in condition 3 will in effect
be *treated* as uninterrupted, provided that any actual interruptions
are small enough in aggregate as to fall within the 182 and 91 day rules.

On Mon, 31 Aug 2009 16:26:30 +0100, Alan Ferris <...@yahoo.co.uk

On Mon, 31 Aug 2009 12:31:32 GMT, Ronald Raygun
<...@localhost.localdomain

Peter will not accept he is wrong. This has been explained elsewhere
and he is still trying to argue he is right and the rules are wrong.

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker

On Mon, 31 Aug 2009 19:35:59 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 31 Aug, 13:31, Ronald Raygun <...@localhost.localdomain
Condition 1 and 3 both relate to the future:

"you are leaving to work abroad under a contract of employment for at
least a whole tax year"

"you will be absent from the UK for at least a whole tax year"

what does 3 add to 1?

Condition 4 can't clarify - it stands alone.

Alan is funny. He's like a barracker adding nothing to the debate.


On Tue, 01 Sep 2009 10:10:40 GMT, Ronald Raygun <...@localhost.localdomain

Condition 1 is that the purpose of leaving must be to work abroad under
a contract of employment. Strictly a taxpayer who is leaving with the
intention of working abroad for more than a tax year, particularly if
able to corroborate this intention by producing a copy of a pre-negotiated
contract which covers a period which does span at least a whole tax year,
has satisfied condition 1 as soon as he has left, even if he subsequently
cuts short his stay abroad before a whole tax year has expired.

What condition 3 adds is that the absence must not merely be intended
to last that long, but that it will in fact do so. This is phrased in
the future tense only because in context the grammatical point of
reference is the departure date.

It doesn't stand totally alone. All four conditions stand together
as part of subsection 8.5.

It stands alone only in the sense that it talks about something else,
about "visits" rather than "absence". But the fact that it talks about
visits at all reveals the underlying assumption in the overarching
context of subsection 8.5 that the "absence" referred to in 3 is
permitted to be dotted with temporary gaps.

It therefore clarifies that what 3's "absence" must mean is the period
between *initial* departure and *final* return, and that any temporary
returns (provided they meet the detailed criteria given) will not have
the effect of breaking the whole absence into several smaller ones,
which would typically end up being shorter than whole tax years.

Do you really think that the rules intend a taxpayer to lose his
non-resident status simply as a result of making short home visits
during a long period of overseas employment? Common sense suggests
they do not.

On Tue, 1 Sep 2009 12:13:33 -0700 (PDT), PeterSaxton <...@petersaxton.co.uk

On 1 Sep, 11:10, Ronald Raygun <...@localhost.localdomainI disagree. If they make a condition in the future tense it must be
treated as such.

It stands alone in the sense that it is a condition that has to be
complied with in isolation.

I don't agree that rules can be discarded simply because it's "not
common sense".

If rules cannot be framed clearly by the people who have
responsibility for the task then they should be replaced.

On Wed, 02 Sep 2009 08:10:46 +0100, Alan Ferris <...@yahoo.co.uk

On Tue, 1 Sep 2009 12:13:33 -0700 (PDT), PeterSaxton
<...@petersaxton.co.uk

But Peter, you are the only person having a problem with the rules.
Are you suggesting that everybody here and on AccountingWeb are
deliberately misleading you by stating that they understand the rules.

--
Ferrit

()'.'.'()
( (T) )
( ) . ( )
(")_(")
"I always babble nonsense to people"
Patrick Barker