The meaning of home

In the UK, an individual’s liability to income and capital gains tax is primarily determined by their residence position, assessed under the statutory residence test (SRT). The SRT identifies when an individual will be conclusively non-UK- or UK-tax resident and also includes a ‘tiebreaker’ test where neither conclusive test is met. This tiebreaker considers days (actually, ‘midnights’) spent in the UK, alongside other connections, including the accommodation tie.

Definitions

The concept of home comes up in different contexts in the SRT, and yet, unhelpfully, is undefined either in statute or in guidance released by His Majesty’s Revenue and Customs (HMRC).[1] Discussion of ‘home’ in the guidance is intended primarily to assist with the application of a conclusive UK residence test, colloquially known as the ‘only home’ test but the term ‘home’ also has implications for split-year treatment and the accommodation tie.

Broadly, where an individual has their only home in the UK, they will automatically be UK-tax resident.[2] Analysis of the nature of someone’s occupation of UK (and other) property is required to determine if this ‘only home’ test is met.

According to the guidance, a person’s home is a place that a reasonable onlooker, with knowledge of the material facts, would regard as such. Case law indicates further that, for accommodation to be an individual’s home, there will need to be ‘a substantial degree of regular personal occupation of an essentially residential nature’,[3] which has ‘some degree of permanency’,[4] a ‘degree of attachment both physical and emotional’[5] and the presence of ‘the comforts of what is known as home’.[6]

It is clear that an individual may have more than one home,[7] and that accommodation used periodically as nothing more than a holiday home does not count as a home.[8]

The analysis in every case will turn on its facts and the guidance includes a non-exhaustive list of factors HMRC considers relevant when determining whether an accommodation is a home, from the existence of parking permits and TV subscriptions to the membership of clubs and the physical presence of family.

Even if a property is not a home, it can still be an accommodation tie for the tiebreaker tests, in which case tax residence will depend upon the number of days an individual spends in the UK, alongside any other ‘ties’. The accommodation tie can be met simply by there being a room in which an individual is permitted to stay on an ad hoc basis or even the regular use of the same hotel room on visits to the UK. Accommodation does not need the same quality as a home but must be available for a continuous period of 91 days and used for at least one day (or, technically, one night).

A quirk of UK tax law is that individuals leaving or arriving partway through a tax year will be treated as being UK-tax resident for the entire tax year, except in very specific circumstances where it is possible to split the tax year into an ‘overseas part’ and a ‘UK part’. These specific circumstances often require an analysis of ‘homes’ available to an individual and include where an individual:

• has no home in the UK at any time or has homes in both the UK and overseas but spends the greater part of the time living in the overseas home;
• ceases to have any home in the UK;
• ceases to have any home overseas (when coming to live in the UK); or
• acquires a home in the UK and then continues to have a home in the UK in the ‘split year’ and the tax year after (if they have no home in the UK at the start of the tax year).

The need for careful planning

Where accommodation in the UK is determined to be a home, a poorly timed disposal of an individual’s home overseas or a period where an individual travels extensively, so spending less time in their home/s overseas, could result in unwelcome consequences, such as an individual becoming UK-tax resident earlier than planned. This could potentially disrupt existing pre-arrival planning.

As part of the wider process of planning for UK tax residence, it is therefore important to consider at the earliest opportunity where in the world an individual has homes and how much time is spent in these homes, and to keep under review any changes to these facts.