Residency 91 day rule

Residency 91 day rule

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Client left UK on 1 April 2010 on a full time contract abroad. Days in UK

2010/11 - 97

2011/12 - 80

2012/13 - 100

He would appear to remain resident in 2010/11.

For 2011/12 the average is 88.5 therefore not resident

For 2012/13 the average is 92.33. He is therefore resident for this year.

Does the fact that he as breached the 91 day average over the three years make him resident in 2011/12?

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By Paul Soper
11th Dec 2013 16:47

Depends on reasons

The 91 day rule (now departed with new statutory residence test) was a concession so even if he had managed to keep within the average there was no guarantee, just a legitimate expectation, that he would have avoided being resident.  However as a concession HMRC would excuse days in the UK if they were due to exceptional circumstances so I think you need to enquire more closely to identify the reasons for the stays in the UK and if any can be identified as being exceptional you may be able to avoid the consequences of exceeding the average.  It would also be helpful if he could show that his home was relocated abroad, hence he could be said to have left the UK for residence abroad.  If his home remained in the UK the probability is that he became dual resident notwithstanding the lengthy periods spent outside the UK and you need to consult the Double Tax Agreement which may give primary taxing rights to the other country anyway.

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