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Although the introduction of statutory residence tests with regards to whether or not someone is resident in the UK or not was meant to clarify the matter to enable people to be sure of their tax position, we have seen HMRC challenge individuals claim not to be UK resident and try to twist the facts to make someone who should not be resident become resident in the UK.
One area that HMRC are focusing on at the moment is the matter of exceptional circumstances claims where HMRC are taking a very narrow interpretation of what is an exceptional circumstance.
HMRC are issuing thousands of nudge letters to ask individuals to check their claim to exceptional circumstances and that the Statutory Residence Test requirements have been met. No doubt this will be followed by enquiries into many of the individuals who receive a nudge letter.
Our experience of dealing with HMRC with regards to the Statutory Residence tests is that HMRC take a very aggressive approach and demand evidence that demonstrates irrefutably that the statutory residence tests have been met including travel documents showing entry and departure from the UK. HMRC have access to information about individuals’ flights and ferry crossings and will test any information against this.
It is often the case that secondary documents are used to prove that someone was not in the country such as bank statements, credit card statements and phone records and these are exceptionally useful where travel documents have not been retained or misplaced.
This aggressive approach by HMRC goes even further where an individual claims one or more exceptional circumstances day which take them over the number of days normally permitted by the Statutory Residence tests.
In order to be considered as exceptional circumstances HMRC deem that there are 5 tests that must be met.
HMRC have stated in correspondence that they believe that the matter of what is an exceptional circumstance is a “high bar” based on the guidance at RDRM13240 which states:
“The type of events which may give rise to exceptional circumstances will be, by their nature out of the ordinary and it is difficult to be prescriptive about what characteristics such an event would exhibit. However, local or national emergencies, such as civil unrest, natural disasters, the outbreak of war or a sudden serious or life-threatening illness or injury to an individual are examples of circumstances that are likely to be exceptional.”
Even with regards to this HMRC have stated that the legislation merely says these may be exceptional circumstances it does not mean that they automatically qualify and that the circumstances should be highly exceptional and unusual in the extreme.
We have had statements in letters from HMRC that not every sudden or life-threatening illness of injury will constitute an exceptional circumstance and that the circumstances must be highly exceptional and not merely out of the ordinary for the individual or unusual or not typical.
With regards to the matter of beyond an individual’s control HMRC have stated that in the opinion of HMRC this means that the individual should have no ability to influence the circumstances that prevent them from leaving the country and this means that the individual is actively stopped from leaving the UK.
These arguments are starting to be tested in the Tribunals with the first published case being A v HMRC [2022] UKTT 133 (TC). Although this was an unusual case in general the Tribunal rejected the narrow interpretation of the law by HMRC and ruled in favour of the taxpayer.
As First Tier Tribunal rulings are not legally binding, we expect that HMRC will stick to its narrow definition until other cases follow. It is our experience that it is standard practice that Tribunal Judges do take into account other Tribunal rulings even if they are not legally binding, but this does not unfortunately prevent HMRC from sticking to their own guidance.
We expect HMRC also to focus on Covid exemptions and HMRC’s published guidance is at RDRM 11005 which states that the exceptional circumstances guidance as set out in brief above should be considered however if an individual is:
In these circumstances HMRC’s guidance is that the days will be considered to be exceptional.
Given HMRC’s approach to the matter of exceptional circumstances then it is likely that evidence will be requested (despite the Taxpayer’s Charter clearly stating that HMRC should treat people as telling the truth). HMRC will no doubt take the view that not being able to return to the Country where the individual lives will not be sufficient if travel was available to another country as international borders may well have been open to other countries.
The matter of the Statutory Residence tests and exceptional circumstances are areas where HMRC take a very harsh view and it is important that an individual where challenged (or if they just wish their residence checking in case HMRC enquire) takes advise from someone with detailed knowledge of how HMRC conduct these reviews and also with experience of moving individuals through the minefield to put together an evidence pack which proves that HMRC are incorrect and if necessary has the experience of taking matters to Tribunal with or without the assistance of Counsel.
If you receive a nudge letter or an enquiry from HMRC, or want someone to check with regards to residence please contact Scott Gilbert on 07771 974137 or arrange a free call by e mailing scott.gilbert@gilberttax.co.uk or Craig Tully on 07786 226013 or craig.tully@gilberttax.co.uk.
All communications are confidential, and no charge is made for the initial discussion.
Get in touch with us for confidential and no-obligation tax advice.
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0800 011 9625
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scott.gilbert@gilberttax.co.uk
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Our firm of tax advisors specialise in resolving people's problems with HMRC. We have extensive expertise in dealing with all forms of tax investigations and tax disputes as well as with taking matters to the Tax Tribunal where agreement cannot be reached.
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