What is considered a day?

What is considered a day?

Normally, an individual’s UK tax residence status for a given year is determined by how many days they spend in the UK during that year. A “day” for this purpose is generally any day in which that individual is present in the UK 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 UK (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 UK 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, it is crucial to recognise that the meaning of “day” can be different in other contexts, which can have a tax effect. For example, in many double tax treaties with the UK, the UK is prevented from taxing a foreign resident employee’s remuneration provided they spend sufficiently few days in the UK during the year (among other conditions). This can be especially useful for employees who (i) are tax resident in the UK and elsewhere; (ii) are considered resident outside the UK for the purposes of the treaty (which is a different test of residence, and which has a different tax effect); and (iii) carry out employment duties in the UK that would otherwise be taxed here. In contexts such as this, HMRC take the view (which the OECD appears to share) that any day in which the individual is present in the UK counts as a day spent in the UK (even days of departure).

The practical advice is as follows. 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 UK during that year without incurring adverse tax consequences – for example, the number of days they can spend in the UK before the year in which they intend to become UK resident – and what that means in practical terms (for example, whether that means they can arrive in and depart from the UK on the same day without it being counted). In terms of record keeping, our advice is that the taxpayer should at a minimum keep a spreadsheet of their days of arrival to and departure from the UK during the year, together with their travel tickets.

For more information or advice, please contact Alex Tamosius, Senior Associate in our Private Client team.

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