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HMRC have published the first issue of Brief, which has replaced Tax Bulletin. The topic covered in this first issue is residence in relation to the recent Special Commissioners case of Robert Gaines-Cooper v HMRC (SpC 568).

This case has attracted some attention from tax practitioners and their clients because there has been some suggestion that the decision has changed the basis on which HMRC calculate the “91-day test”’. The article now published in Brief 01/07 confirms that this is incorrect.

The “91-day test” is set out in HMRC booklet IR20: Residents and non-residents. HMRC believe that this guidance is clear that the “91-day test” applies only to individuals who have either left the UK and live elsewhere or who visit the UK on a regular basis. Where an individual has lived in the UK, the question of whether he has left the UK has to be decided first. Individuals who have left the UK will continue to be regarded as UK-resident if their visits to the UK average 91 days or more a tax year, taken over a maximum of up to 4 tax years.

HMRC’s normal practice, as set out in booklet IR20, is to disregard days of arrival and departure in calculating days under the “91-day test”.

In considering the issues of residence, ordinary residence and domicile in the Gaines-Cooper case, the Commissioners needed to build up a full picture of Mr Gaines-Cooper’s life. A very important element of the picture was the pattern of his presence in the UK compared to the pattern of his presence overseas. The Commissioners decided that, in looking at these patterns, it would be misleading to wholly disregard days of arrival and departure. They used Mr Gaines-Cooper’s patterns of presence in the UK as part of the evidence of his lifestyle and habits during the years in question. Based on this, and a wide range of other evidence, the Commissioners found that he had been continuously resident in the UK. From HMRC’s perspective, therefore, the “91-day test” was not relevant to the Gaines-Cooper case since Mr Gaines-Cooper did not leave the UK.

HMRC now confirm that there has been no change in practice in relation to residence and the “91-day test”. Accordingly, HMRC state in Brief (01/07) that they will continue to:

• follow the published guidance on residence issues, and apply this guidance fairly and consistently;
  
• treat an individual who has not left the UK as remaining resident here;
  
• consider all the relevant evidence, including the pattern of presence in the UK and elsewhere, in deciding whether or not an individual has left the UK; and
  
• apply the “91-day test” (where HMRC is satisfied that an individual has actually left the UK) as outlined in booklet IR20, normally disregarding days of arrival and departure in calculating days under this “test”.

Sarah Laing
Editor, TaxationWeb News

Links
HMRC Brief 01/07: Residence