Definition of "day"
Practical advice
Normally, an individual's UK tax residence status for a given year is determined by how many days they spend in the United Kingdom during that year (for further details please see "Tax residency in the United Kingdom – when does it start?"). A "day" for this purpose is generally any day in which that individual is present in the United Kingdom at midnight at the end of that day – meaning days of departure are usually disregarded (even if they are the same as a day of arrival).
Certain exceptions apply, which can deem days of departure to be days spent in the United Kingdom (although this is only relevant in narrow circumstances where the individual has been UK resident in one of the previous three years and certain other conditions are satisfied). Conversely, if "exceptional circumstances" apply, the individual can disregard up to 60 days they spend in the United Kingdom during the year. Among other things, this can be used in some cases where covid-19 travel restrictions prevent the individual from returning home (but, as this exception can be difficult to rely on, it should only be used where necessary).
However, the meaning of "day" can be different in other contexts, which can have a tax effect. For example, in many double tax treaties, the United Kingdom is prevented from taxing a foreign resident employee's remuneration, provided they spend sufficiently few days in the United Kingdom during the year (among other conditions). This can be especially useful for employees who:
- are tax resident in the United Kingdom and elsewhere;
- are considered resident outside the United Kingdom for the purposes of the treaty (which is a different test of residence and has a different tax effect); and
- carry out employment duties in the United Kingdom that would otherwise be taxed here.
In contexts such as this, Her Majesty's Revenue and Customs take the view (which the Organisation for Economic Co-operation and Development appears to share) that any day in which the individual is present in the United Kingdom counts as a day spent there, even days of departure.
As soon as possible, ideally before the tax year in question starts, the individual should take advice in order to determine how many days they can spend in the United Kingdom during that year without incurring adverse tax consequences. For example, they should determine:
- the number of days they can spend in the United Kingdom before the year in which they intend to become UK resident; and
- what that means in practical terms, such as whether that means they can arrive in and depart from the United Kingdom on the same day without it being counted.
In terms of record keeping, the taxpayer should, at a minimum, keep a spreadsheet of their days of arrival to and departure from the United Kingdom during the year, together with their travel tickets.
For further information on this topic please contact Alex Tamosius at Forsters LLP by telephone (+44 20 7863 8333) or email ([email protected]). The Forsters LLP website can be accessed at www.forsters.co.uk.