"Significant break & 3rd automatic overseas test

[etf]

Hi,

An individual commenced employment overseas in early May 2014. He fulfils all of the various conditions to be regarded as non-UK resident under the third automatic overseas test for 2014/15, apart potentially from the "significant break" test.

The term "significant break" suggests an overseas employment has to have started and is then broken for the term to be applied, but an article I read by Anne Redstone points out the way the legislation is drafted means it may potentially be applied in an example such as this one. I have to admit, I find it hard to get my head around someone becoming non-UK resident before they've actually left the UK!

At the start of 2014/15, in April 2014 and the beginning of May 2014, there is a period of at least 31 days where my individual did not perform 3 hours plus work overseas. However, paragraph 29 2(b) FA 2013 provides a potential get out for those who have a period without overseas work, if there are periods of "annual leave, sick leave or parenting leave". My individual had a period of leave before he started his overseas employment which would take him below the 31 day threshold, but it was unpaid leave rather than annual leave. Does anyone know whether unpaid leave counts for this purpose?

If not, I'll have to continue on to the other SRT tests to see whether non-UK resident status can be achieved in 2014/15.

Kind Regards

etf

[etf]

Found the answer to my question:

Annual leave, when you are employed "is paid days that you are allowed to be away from work". Therefore no mileage in trying to count unpaid days.

KR

etf

[maths]

I agree with your conclusion.

Para 29 is exhaustive and as a consequence the only days which can be excluded in determining if a significant break occurs are days comprising annual, parenting or sick leave.

The key issue is therefore what constitutes "annual leave'. There is no definition in FA 2013 although parenting leave is defined in para 145 and sick leave whilst not specifically defined in para 145 is mentioned in para28(1)(b).

Dictionary definitions tend to refer to annual leave as leave allowed under a contract of employment during which employee is paid.

It is strange that an individual can be resident before arriving back in the UK and non-esident before leaving the UK under Cases 1 to 8!

[offshoreworker]

I too am trying to get my head around what constitutes annual leave.

I work offshore my rotation is 28 days work followed my 28 days leave. I know the 28 days is under the 31 days threshold for a "significant break" however i would be interested to hear your thoughts on my 28 days leave in particular do you think it would constitute annual leave in an argument concerning significant breaks.