Residence, Domicile and the Remittance Basis: Operational Changes

The Finance Act 2008 made a number of changes to the remittance basis tax rules and some changes to the residence rules. These changes followed the ending of the review of residence and domicile which started in 2002. The changes can be found in sections 24 and 25 and Schedule 7 of the Finance Act 2008 but can be summarised broadly as:

• Most individuals now need to make an annual claim to the remittance basis.
• Individuals claiming the remittance basis of taxation, where they have unremitted foreign income or gains of £2,000 or more arising in the tax year, lose their entitlement to personal allowances and the annual exempt amount for Capital Gains Tax.
• The introduction of an annual £30,000 tax charge for adult remittance basis users resident in the UK in the current year and for seven or more of the previous nine years where they have unremitted foreign income or gains of £2,000 or more in the current year.
• Changing the day counting rules that determine when someone becomes resident in the UK under the 183-day rule to count as a day any day upon which an individual is in the UK at the end of that day (ie at midnight), subject to a new rule for transit passengers.
• Closure of a number of loopholes and flaws in the remittance basis that allowed people to bring untaxed income or gains into the UK tax-free.

In the light of these changes HM Revenue & Customs (HMRC) is making some changes to the way we deal with residence, domicile and the remittance basis of taxation.

Guidance

The main HMRC guidance for residence, domicile and remittance basis issues has for many years been the IR20. This was updated last year to incorporate some changes introduced by Finance Act 2008 but, as already announced; we recognise that IR20 needs significant revision. So guidance to replace the IR20 will be published soon and at the same time the IR20 will be withdrawn. We will also be withdrawing any other HMRC guidance on residence and ordinary residence contained in other HMRC manuals, Statements of Practice and publications (for example R&CB 01/07, TB52, SP/A10, SP3/81, SP2/91, SP17/91). In the light of this any practices associated with the old guidance, whether in IR20 or elsewhere, will not apply from 6 April 2009, unless provided for in the new guidance. That new guidance will be in the form of a new set of internet based guidance supported by HMRC guidance manuals for our staff which are also published on the Internet.

The new guidance reflects the 2008 Finance Act changes, other changes from other Finance Acts and recent court decisions in this area. Some wholly new guidance is being issued in some areas, such as domicile, to help people correctly self-assess their tax liability.

Some interim guidance had been made available already, mostly in the form of Frequently Asked Questions (FAQs) and the explanatory notes for Schedule 7 Finance Act 2008. This interim guidance will be incorporated into the new permanent guidance as appropriate. The following guidance has already been released:

• Guidance on Employment Related Securities
• Guidance on section 690 ITEPA directions as explained below
• Statement of Practice 1/09 (which replaces Statement of Practice 5/84).
• Coming to work in the UK

The remaining guidance will be published shortly and will include:

• A simple guide to residence, ordinary residence and domicile.
• The ‘Residence, Domicile & the Remittance Basis’ guidance (HMRC6). This replaces the old IR20.
• New guidance on the remittance basis rules. (This will form part of the new ‘Residence, Domicile and Remittances’ manual for HMRC staff.)
• Some new guidance on domicile. (This will move to the Residence, Domicile and Remittances manual in due course.)
• Some new guidance on non-resident trusts.
• Some guidance on the application of the remittance basis to the Transfer of Assets legislation. (This will form part of the new ‘Transfer of Assets’ manual for HMRC staff.)
• Updates to the Capital Gains Tax manual to reflect the changes to the remittance basis.
• A new short guide for international students.
• Revised guidance on letting property abroad.

Most of the guidance will initially be published on the ‘Residence and domicile : Guidance on the new tax rules’ pages but over the coming months it will be incorporated into existing guidance manuals as appropriate and published as part of our general internet guidance. The same webpage will provide links to any guidance published in existing guidance manuals

Initial Non-domicile Claims – Form DOM 1

Tax Bulletin 29, published in June 1997, announced that following the introduction of self assessment HMRC (the former Inland Revenue) would no longer provide a residence rulings service. However we continued to accept initial non–domicile claims on forms DOM 1 or P86. Enquiries are sometimes undertaken into such claims under Schedule 1A TMA 1970. In addition an enquiry under section 9A TMA 1970 can also be made into a claim to non-domicile status made on a Self Assessment tax return either as a stand alone enquiry or as part of a wider enquiry.

The publication of our new guidance on domicile, plus the fact that from 2008-09 onwards a claim to the remittance basis is no longer mandatory, and must be made on a year by year basis where an individual has unremitted foreign income or gains of £2,000 or more arising in the tax year, mean that HMRC will no longer accept initial non-domicile claims on form DOM 1 or form P86. Form DOM 1 is being withdrawn completely. It will be replaced by the new comprehensive domicile guidance mentioned above that will allow the vast majority of people to self assess their own domicile status. Form P86 will also be withdrawn soon and replaced by a new form. Until such time as the new form is issued individuals do not need to fill in boxes 12 to 17 on the P86 when submitting it. If they choose to fill in those boxes HMRC will ignore the content when processing the form.

Any DOM 1 forms received by HMRC by close of business 25 March 2009 will still be processed but any received after that date will be returned unexamined.

In future, subject to the comments below about Inheritance Tax, enquiries about domicile status will be dealt with by way of an enquiry into a Self Assessment tax return which an individual has made on the basis that they are not domiciled in the UK.

Where an individual has already submitted a form DOM 1 or P86 and obtained an initial view from HMRC about their domicile status it will be unusual for us to open an enquiry into domicile status in the few years after that, unless new information becomes available that indicates our initial view was incorrect or there has been a change in circumstances. However with the passage of time, circumstances and intentions change and so that initial view from HMRC can become less and less useful as an indicator of domicile status. For example if an individual had advised HMRC on their arrival in England a decade or so ago that they planned to leave the UK after five years but had since married, had a family and decided to make England their permanent home then they will have adopted a domicile of choice within the UK.

Domicile and Inheritance Tax

Where an individual who is not domiciled in the UK settles non-UK assets into a non-UK resident trust then assets in that trust will not be subject to inheritance tax. Following the release of the new HMRC guidance on domicile most settlors should now be able to decide for themselves whether or not they are UK domiciled.

An individual setting up a non-resident trust who, having taken account of the new HMRC guidance, considers they are non-UK domiciled is not obliged to submit an Inheritance Tax account to HMRC. If the settlor is non-UK domiciled then no Inheritance Tax is due. But if an Inheritance Tax account is submitted in these circumstances, HMRC will continue its existing practice and only open an enquiry into that return if the amounts of Inheritance Tax at stake make such an enquiry cost effective to carry out. At present that limit is £10,000.

As is currently the case, where HMRC has expressed an opinion on the domicile status of a settlor for Inheritance Tax purposes we will not normally seek to reconsider that opinion unless new information becomes available that indicates our initial opinion was incorrect or there has been a material change in the circumstances of the settlor. However, when we make a decision it applies only to the date of the transaction concerned. So if circumstances change, the individual returns to the UK for example, that individual's domicile may need to be considered again at another point in time. Domicile is not a static thing, it can change as people's circumstances and intentions change.

Enquiries into Domicile Status

For 2008-09 and later years, in order to make a valid claim to the remittance basis individuals will be required to state on their Self Assessment tax return the grounds for their entitlement by stating either that they are not domiciled in the UK or that they are not ordinarily resident in the UK (or both). The new domicile guidance will help individuals decide their domicile status, supported as appropriate by any professional advice they may obtain. As a result, if HMRC decides to enquire into an individual's domicile status this will be by way of a section 9A TMA enquiry into their Self Assessment tax return. (Alternatively in appropriate cases HMRC may enquire into an individual's domicile status by way of a Part VIII IHTA enquiry into an Inheritance Tax return.) Where a claim to the remittance basis is not challenged for that year it does not mean HMRC necessarily accepts the individual's domicile is outside the UK and does not prevent HMRC from later opening an enquiry to consider the domicile status of the individual in relation to that, or any earlier year.

Enquiries aimed at establishing an individual's domicile are, by their very nature, examinations of an individual's background, lifestyle, habits and intentions, possibly over the course of a lifetime. Consequently, any such enquiries conducted by HMRC will, where necessary, extend to areas of individuals’ and their families’ affairs that may not normally be regarded as relevant to their UK tax position. As a result of some feedback from customers on such domicile enquiries our new domicile guidance includes a section starting at paragraph 49600 which explains the nature of a domicile enquiry and the sorts of questions an individual will need to answer as part of that enquiry.

Where HMRC has expressed a view on an individual's domicile status for income tax or capital gains tax purposes, as a result of an enquiry, then that view will also apply for Inheritance Tax purposes at that time. Likewise a HMRC view expressed for Inheritance Tax purposes, following a Part VIII IHTA enquiry, will also apply for income tax and capital gains purposes at that time. However, it is important to remember that each decision on domicile will be made at a certain point in time, if circumstances have changed since the time of the relevant decision, the domicile of the taxpayer may also have changed.

Remittance Basis Users Whose Foreign Income and Gains is Less than £2,000

Under section 809D ITA 2007 an individual who is entitled to claim the remittance basis of taxation but whose total unremitted foreign income and gains is less than £2,000 in any tax year, can use the remittance basis without having to make a formal claim each year by submitting a Self Assessment tax return. Also, such users will not lose any of their Personal Allowances or their Annual Exempt Amount.

Individuals making use of section 809D are still taxable on any foreign income or gains remitted to the UK. Remittances may be in the form of cash, assets or services enjoyed in the UK. Taxable remittances have to be included on a self assessment tax return. Also, some people who are able to use the remittance basis under section 809D will already be within self assessment and so have an annual Self Assessment tax return to make. There is a new box on the supplementary ‘Residence and Remittance Basis etc.’ pages (SA109) for such individuals to advise HMRC of their use of the remittance basis under section 809D. This ensures they continue to get their Personal Allowances and the Annual Exempt Amount.

It is recognised that some individuals, in particular those on low income, may make small cash remittances to the UK, out of foreign income or gains, and as a result have to complete a Self Assessment tax return possibly to pay only a small amount of tax. This is particularly the case where foreign tax has already been paid on the income or gains. Where an individual who is making use of section 809D remits less than a total of £500 in cash, which arises from foreign income or gains, into the UK during the tax year, then HMRC will accept that such an individual does not need to make a Self Assessment Tax return simply to pay the tax on those cash remittances. However where such an individual is required to complete a Self Assessment tax return for any other reason, or HMRC serves them with a notice to make a return, then they will need to include those remittances on the return and pay the tax due. This practice will apply for 2008-09 and subsequent years.

Individuals Paying the £30,000 Remittance Basis Charge

The £30,000 charge is not a separate stand alone tax charge but rather a charge to income tax or Capital Gains Tax on unremitted foreign income or gains. The fact that the £30,000 constitutes income tax or Capital Gains Tax (or a combination of the two) ensures that individuals who remit all of their foreign income and gains to the UK can get credit for the £30,000 against their UK liabilities. In order to obtain that relief individuals have to make sure they make appropriate nominations of the income or gains upon which the £30,000 is paid.

The rules for nominating income and gains upon which the £30,000 is paid, and the rules for identifying what is taxed if those nominated income or gains are later remitted to the UK, can be complex. To help ensure individuals who pay the £30,000 get the right level of customer support from HMRC, we have decided that most individuals who pay the £30,000, or have paid it in the past, will have their tax affairs dealt with in one HMRC office from 2009-10. This will be the CAR Residency office in Castle Meadow, Nottingham.

Customers who are sent a self assessment return by a different office should make the return to the office issuing that return. Once the return has been received by HMRC we will arrange for the individual's tax records to be transferred to the CAR Residency office in Nottingham and advise the individual and any agent, accordingly. Until such time as individuals or their agents receive such a notification they should continue to deal with their current tax office.

Section 690 ITEPA directions

Prior to April 2008 non-domiciled individuals and not ordinarily resident individuals were automatically taxed on the remittance basis on their foreign employment income. However since April 2008 individuals have to make an annual claim to the remittance basis. Section 690 ITEPA was amended in Finance Act 2008 to reflect this change for not ordinarily resident employees. Prior to April 2008 employers were able to ask for a section 690 direction which permitted them not to apply PAYE to certain employment income paid to not ordinarily resident employees entitled to be taxed on the remittance basis. These rules have been amended to allow this procedure to continue.

As mentioned above, revised guidance on this has already been published on the HMRC website. Issued 25 March 2009