UK ordinary residence

17 July 2012 | Guy Abbiss

HM Treasury has published draft legislation in relation to the abolition of ordinary residence for all tax purposes except for overseas workday relief.

Background

In June 2011, as part of its proposal for a statutory definition of tax residence the Government set out its view for the future in relation to the concept of ordinary residence for tax purposes.

In its original consultation document, the Government set out two options:

  • The abolition of ordinary residence for all tax purposes apart from overseas workday relief (OWR).
  • The retention of ordinary residence for all tax purposes and the introduction of a statutory definition.

These are discussed more fully in our article ‘Ordinary residence – a look at the proposed new test’

Of those who responded, a clear majority favoured the first option on the basis that the concept of “ordinary residence” was outdated and unnecessary. However, respondents were clear in their support for the retention of OWR since its abolition would discourage expatriates from coming to work in the UK and create additional costs for employers of those who do.

The Government supports the retention of OWR and intends for it to be available for non domiciled individuals with the exception of those who are “based” in the UK and who will continue to be based in the UK beyond the end of the second full tax year following the year in which UK residence was established (the “three-year point”).

It is proposed that being UK-based beyond the three-year point can reasonably be assumed where;

  • a home is purchased in the UK;
  • an understanding is reached that employment duties will be performed in the UK beyond the three-year point; or
  • the individual enters into other commitments in the UK that indicate being based in the UK beyond the three-year point.

Currently it is possible, although unusual, for UK domiciled individuals to be regarded as not ordinarily resident and therefore eligible for OWR. The Government’s view is that there is little justification for this to continue. It has not been convinced by arguments put forward for the retention of OWR for UK domiciled individuals and has confirmed that it will restrict OWR to individuals who are not domiciled in the UK.

Commentary

The Government has reiterated that the current “intention to settle” test for determining ordinary residence (and therefore ineligibility for OWR) is too subjective and uncertain. While the proposed indicative factors go some way to removing the subjectivity and uncertainty, it seems that an international assignment can very easily be structured such that none of those factors are present.

For further information or to discuss the issues raised, please get in touch.

Disclaimer

Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this article. For further legal information click here.

Related content

13 June 2024
How to apply for certificate of residence in the UK
Where an individual is resident in the UK and has…
29 May 2024
UK Share Plan Reporting 2024: Everything you need to know
The deadline is approaching for the HMRC’s annual return filings…
20 May 2024
Employee Share Plan Reporting 2024: Alerting Your Clients
The UK tax authorities’ (HMRC) submission deadline for annual return…
Subscribe to our newsletter
Stay up to the minute on our latest news and insights?
International reach

We have helped clients meet their HR needs in over 70 countries across five continents.