If you are working overseas either as a permanent move or under a short term secondment you should carefully consider the tax planning opportunities available to you.

Many people look to go and work overseas. One of the key considerations will be achieving the tax advantages that go with working overseas.

What are the tax advantages

The main tax advantage is that if you can get classed as non UK resident and non UK ordinarily resident you will be exempt from UK income tax on your overseas salary income. If you're working in a nil or low tax environment such as Dubai this means you can receive your salary totally tax free.

Other tax benefits of establishing non UK residence status include:

• Being able to receive UK bank and building society interest free of income tax. By submitting a form R43 available from the Revenue website you can elect to reclaim tax that was wrongly deducted on interest from the UK as a non UK resident and non UK ordinarily resident individual.
• Being able to receive UK dividends free of any UK withholding taxes
• Only being subject to UK tax on bank interest and dividends to the extent that tax is deducted at source (ie effectively nil) for the tax years after you emigrate
• Being exempt from UK capital gains tax on any assets that you acquire after you leave the UK. When you sell assets that you already owned when you left the UK you will usually be subject to the five year non residence requirement if you want to avoid CGT.

Residence

There is no firm guideline laid down in the tax legislation as to when an individual is and is not UK resident.

The courts have traditionally given Residence its ordinary dictionary meaning.

Therefore they take the view that to reside somewhere means to 'dwell permanently or for a considerable time, to have ones settled or usual abode, to live in or at a particular place.

In this respect the courts/commissioners could look at an individuals ties to the UK, the regularity and length of visits to the UK,past and present habits of life and freedom of attachments abroad. As such if an individual goes to work overseas and has no real visits to the UK in the period since departure they would clearly be non UK resident. If on the other hand they retained a UK property and came here for around 5-7 days per month and lived with close family it is likely they would be UK resident.

In fact though this strict legal position is modified by Revenue practice/concessions.

However the strict legal position is always worth bearing in mind because the Commissioners can and do ignore the Revenue practice if they choose to.

Revenue Practice

If you leave the UK to work full-time abroad under a contract of employment, you are treated as not resident and not ordinarily resident if you meet all the following conditions:

• your absence from the UK and your employment abroad both last for at least a whole tax year
• during your absence any visits you make to the UK - total less than 183 days in any tax year, and - average less than 91 days a tax year. (The average is taken over the period of absence up to a maximum of four years. Any days spent in the UK because of exceptional circumstances beyond your control, for example the illness of yourself or a member of your immediate family, are not normally counted for this purpose.)

If you meet all these conditions you are treated as not resident and not ordinarily resident in the UK from the day after you leave the UK to the day before you return to the UK at the end of your employment abroad. You are treated as coming to the UK permanently on the day you return from your employment abroad and as resident and ordinarily resident from that date.

If an individual has met ALL these conditions he is then entitled to claim Non UK resident and non UK ordinary resident status from the day following departure from the UK for full-time work abroad in accordance with the above. That status continues as long as the individual continues to meet all of these conditions.

As soon as you cease to meet these conditions in a tax year you would therefore not then be entitled to the concession.

It's therefore essential then that in order to claim the benefit of the concession (essentially to expedite your non residence application and to prevent the strict legal position being initially considered) you are:

• working overseas under a full time contract of employment

• overseas under the contract of employment for at least a full tax year

• able to meet both the 90 and 183 day requirements

If you're not the Revenue will usually be quick to point out the concession does not apply.

Full time

This is not defined and there is no minimum number of hours specified. However the Revenue regard a working week of 35-40 hours as full time and can accept lower hours if its reflected in local conditions. Several part time jobs can also constitute full time work.

If you own a company there is nothing to prevent you from establishing non UK residence be drafting a contract of employment for an overseas subsidiary. Providing you then meet the above conditions the fact that you are a shareholder in the company would not prevent you establishing UK residence. Clearly you'd need to be an employee although you'd need to be able to show that there was a genuine full time employment.

When can the conditions be breached?

There are lots of circumstances where the conditions can be breached aside from the obvious breaches of exceeding the 90 day requirement or not ensuring the employment contract lasted for a complete tax year.

The Revenue have stated that '...If there is a break in full-time employment, or some other change in your circumstances during the period you are overseas, we would have to review the position to decide whether you still meet the conditions...' and '...If at the end of one employment you returned temporarily to the UK, planning to go abroad again after a very short stay in this country, we may review your residence status in the light of all the circumstances of your employment abroad and your return to the UK...'

You would also need to ensure that there were no UK duties other than 'incidental' UK duties. Incidental has been strictly construed for this purpose and for example a pilot whose flights required occasional stop overs in the UK was held to have more than incidental UK duties.

You would also need to ensure that your employment was full time. If for example you had a significant period away from the office in the UK it is likely the Revenue would argue that you were not in full time employment. Therefore there are cases where the Revenue have challenged individuals having 80 days spent in the UK in a tax year to visit aged relatives etc on the basis that they were not in full time employment.

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