The statute covers those unable to leave the UK, not those who return.
Do those returning to the UK because of civil unrest become tax resident here? Are they entitled to rely on the ‘exceptional circumstances’ rule?
The statutory residence test (FA 2013 Sch 45 para 22(4)) allows a taxpayer to exempt up to 60 days from their day count where:
‘(a) P [the taxpayer] would not be present in the UK at the end of that day but for exceptional circumstances beyond P’s control that prevent P from leaving the UK, and
‘(b) P intends to leave the UK as soon as those circumstances permit.’
War and civil unrest are specifically referred to as examples of (possible) exceptional circumstances (para 22(5)).
HMRC could argue that this does not apply where a taxpayer chooses to return to the UK since the test refers to circumstances which ‘prevent P from leaving the UK’ (emphasis added). However that would draw quite artificial distinctions between those who happened to be in the UK when war broke out in their usual country of residence, and those who left their usual country of residence on the outbreak of war to return to the UK.
HMRC appear to accept that someone leaving a warzone to return to the UK would be able to rely on exceptional circumstances, at least where FCO advice is to avoid all travel to the region. HMRC’s Residence and FIG Regime Manual at RFIG22250 provides:
‘Exceptional circumstances will generally not apply in respect of events that bring an individual back to the UK. However, there may be circumstances such as civil unrest or natural disaster where associated FCO advice is to avoid all travel to the region.
‘Individuals who return to and stay in the UK while FCO advice remains at this warning level would normally have days spent in the UK ignored under the SRT, subject to the 60 day limit.’
Query the position where the FCO Guidance is at some lower level. At the moment, for the UAE, the advice is against all but essential travel to the region, so arguably it would not fall within the four corners of the guidance. In any event, caution must be exercised when seeking to rely on HMRC guidance (since it is guidance, not the law) and the statutory wording does refer to being prevented from leaving the UK (rather than choosing to return).
Ultimately, taxpayers’ money is required to keep the UK safe, so there may be some scepticism about those who return to the safety of the UK but nevertheless seek to avoid liability to tax.
Home >Articles > Exceptional circumstances – but which way?
Exceptional circumstances – but which way?
The statute covers those unable to leave the UK, not those who return.
Do those returning to the UK because of civil unrest become tax resident here? Are they entitled to rely on the ‘exceptional circumstances’ rule?
The statutory residence test (FA 2013 Sch 45 para 22(4)) allows a taxpayer to exempt up to 60 days from their day count where:
‘(a) P [the taxpayer] would not be present in the UK at the end of that day but for exceptional circumstances beyond P’s control that prevent P from leaving the UK, and
‘(b) P intends to leave the UK as soon as those circumstances permit.’
War and civil unrest are specifically referred to as examples of (possible) exceptional circumstances (para 22(5)).
HMRC could argue that this does not apply where a taxpayer chooses to return to the UK since the test refers to circumstances which ‘prevent P from leaving the UK’ (emphasis added). However that would draw quite artificial distinctions between those who happened to be in the UK when war broke out in their usual country of residence, and those who left their usual country of residence on the outbreak of war to return to the UK.
HMRC appear to accept that someone leaving a warzone to return to the UK would be able to rely on exceptional circumstances, at least where FCO advice is to avoid all travel to the region. HMRC’s Residence and FIG Regime Manual at RFIG22250 provides:
‘Exceptional circumstances will generally not apply in respect of events that bring an individual back to the UK. However, there may be circumstances such as civil unrest or natural disaster where associated FCO advice is to avoid all travel to the region.
‘Individuals who return to and stay in the UK while FCO advice remains at this warning level would normally have days spent in the UK ignored under the SRT, subject to the 60 day limit.’
Query the position where the FCO Guidance is at some lower level. At the moment, for the UAE, the advice is against all but essential travel to the region, so arguably it would not fall within the four corners of the guidance. In any event, caution must be exercised when seeking to rely on HMRC guidance (since it is guidance, not the law) and the statutory wording does refer to being prevented from leaving the UK (rather than choosing to return).
Ultimately, taxpayers’ money is required to keep the UK safe, so there may be some scepticism about those who return to the safety of the UK but nevertheless seek to avoid liability to tax.
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