A taxpayer left the UK in 2006-2007 intending to work abroad for
several years.

She returned to the UK for about 10 days in 2007-2008 tax year.

She returned to the UK on 11 April 2008 and started work in the UK on
13 April 2008.

The HMRC booklet: Residence, Domicile and the Remittance Basis

http://www.hmrc.gov.uk/cnr/hmrc6.pdf

"8.5 Leaving the UK to work abroad as an employee
If you are leaving the UK to work abroad full-time, you will only
become
not resident and not ordinarily resident from the day after the day of
your
departure, as long as:
• you are leaving to work abroad under a contract of employment for at
least a whole tax year
• you have actually physically left the UK to begin your employment
abroad
and not, for example, to have a holiday until you begin your
employment
• you will be absent from the UK for at least a whole tax year
• your visits to the UK after you have left to begin your overseas
employment will
- total less than 183 days in any tax year, and
- average less than 91 days a tax year. This average is taken over the
period of absence up to a maximum of four years – see 8.3 which will
show you how to work out this average. Any days you spend in the UK
because of exceptional circumstances beyond your control, for example
an illness which prevents you from travelling, are not normally
counted
for this purpose.
If you do not meet all of these conditions, you will remain resident
and
ordinarily resident in the UK unless paragraph 8.2 applies to you.
If your employment comes to an end and you do not return to the UK it
will
be necessary to consider if you continue to be not resident and not
ordinarily resident in the UK."

A11. Residence in the United Kingdom: year of commencement or
cessation of residence

http://www.hmrc.gov.uk/manuals/senew/se42850.htm

"The Income and Corporation Taxes Acts make no provision for splitting
tax years in relation to residence and an individual who is resident
in the United Kingdom for any year of assessment is chargeable on the
basis that he is resident for the whole year.
But where an individual:

comes to the United Kingdom to take up permanent residence or to stay
for at least two years, or
ceases to reside in the United Kingdom if he has left for permanent
residence abroad,
liability to United Kingdom tax which is affected by residence is
computed by reference to the period of his residence here during the
year. It is a condition that the individual should satisfy the Board
of Inland Revenue that prior to his arrival he was, or on his
departure is, not ordinarily resident in the United Kingdom. The
concession would not apply, for example, where an individual who had
been ordinarily resident in the United Kingdom left for intended
permanent residence abroad but returned to reside here before the end
of the tax year following the tax year of departure.
This concession is extended to the years of departure and return
where, subject to certain conditions, an individual goes abroad for
full time service under a contract of employment. These conditions
are-

the individual absence from the United Kingdom and the employment
itself both extend over a period covering a complete tax year, and
any interim visits to the United Kingdom during the period do not
amount to
183 days or more in any tax year, or
an average of 91 days or more in a tax year (the average is taken over
the period of absence up to a maximum of four years, and
for years up to and including 1992-93, all the duties of the
employment are performed abroad or any duties the individual performs
in the United Kingdom are incidental to duties abroad.
Where the concession applies and the tax year is split, Section 128
Finance Act 1995 (limit on income chargeable on non-residents: Income
Tax) does not apply for the period for which an individual is treated
as not resident. That Section only applies to complete years of non-
residence."

My view is that "the individual absence from the United Kingdom and
the employment itself both extend over a period covering a complete
tax year" means the taxpayer should not visit the UK in the tax year
but when I phone HMRC they seem to think that spending 10 days in the
UK in the tax year still counts as absence from the UK!

Can anybody shed any light on this?

PeterSaxton wrote:

> My view is that "the individual absence from the United Kingdom and
> the employment itself both extend over a period covering a complete
> tax year" means the taxpayer should not visit the UK in the tax year
> but when I phone HMRC they seem to think that spending 10 days in the
> UK in the tax year still counts as absence from the UK!
> 
> Can anybody shed any light on this?

I would interpret "individual absence" as a period when the person
*resided* abroad, as opposed to physically being away for the entire
duration.  Therefore spending a few (as many as 182, apparently)
days visiting the UK during a prolonged absence would not convert
this into two individual absences.

But, if you're looking for vague bits, what does the following mean?

> ? you are leaving to work abroad under a contract of employment for at
> least a whole tax year

Does it mean the contract needs to be in place before you leave?
Does it mean the contract must be for at least a year's work, or
does the "at least for" apply only to the leaving?  What if you leave
for a two month contract hoping for it to be extended or for other
opportunities of work to arise?  And why does there need to be a
contract of employment?  What if you leave to work on a self-employed
basis?

> ? you will be absent from the UK for at least a whole tax year

Does this mean that you *expect* at time of leaving that the absence
will last that long, or does it mean that only once it has in fact
lasted that long will you retrospectively count as having been
absent from the date of leaving?

On 26 Aug, 13:15, Ronald Raygun <no.s...@localhost.localdomain> wrote:
> PeterSaxton wrote:
> > My view is that "the individual absence from the United Kingdom and
> > the employment itself both extend over a period covering a complete
> > tax year" means the taxpayer should not visit the UK in the tax year
> > but when I phone HMRC they seem to think that spending 10 days in the
> > UK in the tax year still counts as absence from the UK!
>
> > Can anybody shed any light on this?
>
> I would interpret "individual absence" as a period when the person
> *resided* abroad, as opposed to physically being away for the entire
> duration.  Therefore spending a few (as many as 182, apparently)
> days visiting the UK during a prolonged absence would not convert
> this into two individual absences.
>
I've not considered absence to relate to residence in the situation
where you are deciding residence based on absence!

The guidance says: "If you do not meet all of these conditions" but
then they appear to ignore one condition if you satisfy other
conditions!

Total madness.

> But, if you're looking for vague bits, what does the following mean?
>
> > ? you are leaving to work abroad under a contract of employment for at
> > least a whole tax year
>
> Does it mean the contract needs to be in place before you leave?

Yes, otherwise you are leaving on mere speculation.

> Does it mean the contract must be for at least a year's work, or
> does the "at least for" apply only to the leaving?

It applies to the employment otherwise they would have said: "you are
leaving for at least a whole tax year to work abroad under a contract
of employment"

>  What if you leave
> for a two month contract hoping for it to be extended or for other
> opportunities of work to arise?

I don't think HMRC place much reliance on "hope"!

>  And why does there need to be a
> contract of employment?  What if you leave to work on a self-employed
> basis?

8.8 Leaving the UK to become self-employed abroad
If you are leaving the UK to work abroad for yourself in a trade,
profession
or vocation, then as long as your working circumstances are similar to
those
outlined in paragraph 8.5, you will be taxed in the same way.
>
> > ? you will be absent from the UK for at least a whole tax year
>
> Does this mean that you *expect* at time of leaving that the absence
> will last that long, or does it mean that only once it has in fact
> lasted that long will you retrospectively count as having been
> absent from the date of leaving?

You need evidence to support your absence from the UK for at least a
whole tax year, eg. contract of employment, etc.

If you can't provide sufficient evidence you would apply
retrospectively.

On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
 wrote:

>My view is that "the individual absence from the United Kingdom and
>the employment itself both extend over a period covering a complete
>tax year" means the taxpayer should not visit the UK in the tax year
>but when I phone HMRC they seem to think that spending 10 days in the
>UK in the tax year still counts as absence from the UK!

No, see 8.3 and the 91 day average rule

--
Ferrit

 ()'.'.'()
 ( (T) )
 ( ) . ( )
 (")_(")
"I always babble nonsense to people" 
Patrick Barker

On 26 Aug, 17:24, Alan Ferris  wrote:
> On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
>
>  wrote:
> >My view is that "the individual absence from the United Kingdom and
> >the employment itself both extend over a period covering a complete
> >tax year" means the taxpayer should not visit the UK in the tax year
> >but when I phone HMRC they seem to think that spending 10 days in the
> >UK in the tax year still counts as absence from the UK!
>
> No, see 8.3 and the 91 day average rule
>
I understand there are other conditions but IR20 says: "If you do not
meet all of these conditions, you will remain resident
and ordinarily resident in the UK "

Why do they ignore the absent from UK condition?

On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton
 wrote:

>On 26 Aug, 17:24, Alan Ferris  wrote:
>> On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
>>
>>  wrote:
>> >My view is that "the individual absence from the United Kingdom and
>> >the employment itself both extend over a period covering a complete
>> >tax year" means the taxpayer should not visit the UK in the tax year
>> >but when I phone HMRC they seem to think that spending 10 days in the
>> >UK in the tax year still counts as absence from the UK!
>>
>> No, see 8.3 and the 91 day average rule
>>
>I understand there are other conditions but IR20 says: "If you do not
>meet all of these conditions, you will remain resident
>and ordinarily resident in the UK "
>
>Why do they ignore the absent from UK condition?
 
They don't, they tell you what they classify as an absence and how
much time can be spent in the UK.  What is it you fail to grasp about
splitting years?

--
Ferrit

 ()'.'.'()
 ( (T) )
 ( ) . ( )
 (")_(")
"I always babble nonsense to people" 
Patrick Barker

On 27 Aug, 18:30, Alan Ferris  wrote:
> On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton
>
>
>
>
>
>  wrote:
> >On 26 Aug, 17:24, Alan Ferris  wrote:
> >> On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
>
> >>  wrote:
> >> >My view is that "the individual absence from the United Kingdom and
> >> >the employment itself both extend over a period covering a complete
> >> >tax year" means the taxpayer should not visit the UK in the tax year
> >> >but when I phone HMRC they seem to think that spending 10 days in the
> >> >UK in the tax year still counts as absence from the UK!
>
> >> No, see 8.3 and the 91 day average rule
>
> >I understand there are other conditions but IR20 says: "If you do not
> >meet all of these conditions, you will remain resident
> >and ordinarily resident in the UK "
>
> >Why do they ignore the absent from UK condition?
>
> They don't, they tell you what they classify as an absence and how
> much time can be spent in the UK.

Where do they say what they class as an absence? I assume you will get
this wrong because you don't have a clue but go ahead.

>  What is it you fail to grasp about
> splitting years?
>
I understand about splitting years. I am talking about "absence" from
the UK.

> --
> Ferrit
>
>  ()'.'.'()
>  ( (T) )
>  ( ) . ( )
>  (")_(")
> "I always babble nonsense to people"
> Patrick Barker

On Thu, 27 Aug 2009 10:59:24 -0700 (PDT), PeterSaxton
 wrote:

>On 27 Aug, 18:30, Alan Ferris  wrote:
>> On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton
>>
>>
>>
>>
>>
>>  wrote:
>> >On 26 Aug, 17:24, Alan Ferris  wrote:
>> >> On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
>>
>> >>  wrote:
>> >> >My view is that "the individual absence from the United Kingdom and
>> >> >the employment itself both extend over a period covering a complete
>> >> >tax year" means the taxpayer should not visit the UK in the tax year
>> >> >but when I phone HMRC they seem to think that spending 10 days in the
>> >> >UK in the tax year still counts as absence from the UK!
>>
>> >> No, see 8.3 and the 91 day average rule
>>
>> >I understand there are other conditions but IR20 says: "If you do not
>> >meet all of these conditions, you will remain resident
>> >and ordinarily resident in the UK "
>>
>> >Why do they ignore the absent from UK condition?
>>
>> They don't, they tell you what they classify as an absence and how
>> much time can be spent in the UK.
>
>Where do they say what they class as an absence? I assume you will get
>this wrong because you don't have a clue but go ahead.

Try reading again 8.3 where they clearly state how many days you can
spend in the UK and be considered absent.

>>  What is it you fail to grasp about
>> splitting years?
>>
>I understand about splitting years. I am talking about "absence" from
>the UK.

--
Ferrit

 ()'.'.'()
 ( (T) )
 ( ) . ( )
 (")_(")
"I always babble nonsense to people" 
Patrick Barker

On 28 Aug, 07:53, Alan Ferris  wrote:
> On Thu, 27 Aug 2009 10:59:24 -0700 (PDT), PeterSaxton
>
>
>
>
>
>  wrote:
> >On 27 Aug, 18:30, Alan Ferris  wrote:
> >> On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton
>
> >>  wrote:
> >> >On 26 Aug, 17:24, Alan Ferris  wrote:
> >> >> On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
>
> >> >>  wrote:
> >> >> >My view is that "the individual absence from the United Kingdom and
> >> >> >the employment itself both extend over a period covering a complete
> >> >> >tax year" means the taxpayer should not visit the UK in the tax year
> >> >> >but when I phone HMRC they seem to think that spending 10 days in the
> >> >> >UK in the tax year still counts as absence from the UK!
>
> >> >> No, see 8.3 and the 91 day average rule
>
> >> >I understand there are other conditions but IR20 says: "If you do not
> >> >meet all of these conditions, you will remain resident
> >> >and ordinarily resident in the UK "
>
> >> >Why do they ignore the absent from UK condition?
>
> >> They don't, they tell you what they classify as an absence and how
> >> much time can be spent in the UK.
>
> >Where do they say what they class as an absence? I assume you will get
> >this wrong because you don't have a clue but go ahead.
>
> Try reading again 8.3 where they clearly state how many days you can
> spend in the UK and be considered absent.
>
8.3 explains how you calculate average visits to the UK. Average
visits are referred to in a separate condition:

"average less than 91 days a tax year. This average is taken over the
period of absence up to a maximum of four years – see 8.3 which will
show you how to work out this average. Any days you spend in the UK
because of exceptional circumstances beyond your control, for example
an illness which prevents you from travelling, are not normally
counted for this purpose."

Nobody else has disagreed with me and you can't raise anything of
relevance so because you don't seem to understand I will summarise the
problem.

One of the conditions states: “you are leaving to work abroad under a
contract of employment for at least a whole tax year”

All of the conditions are relevant because of:  “If you do not meet
all of these conditions, you will remain resident and ordinarily
resident in the UK”

Given the condition at the top refers to working abroad for at least a
whole tax year, what does this condition add?: “you will be absent
from the UK for at least a whole tax year”

Surely that must refer to physical absence otherwise it is covered in
the condition at the top and therefore unnecessary.

On Fri, 28 Aug 2009 01:47:21 -0700 (PDT), PeterSaxton
 wrote:

>On 28 Aug, 07:53, Alan Ferris  wrote:
>> On Thu, 27 Aug 2009 10:59:24 -0700 (PDT), PeterSaxton
>>
>>
>>
>>
>>
>>  wrote:
>> >On 27 Aug, 18:30, Alan Ferris  wrote:
>> >> On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton
>>
>> >>  wrote:
>> >> >On 26 Aug, 17:24, Alan Ferris  wrote:
>> >> >> On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
>>
>> >> >>  wrote:
>> >> >> >My view is that "the individual absence from the United Kingdom and
>> >> >> >the employment itself both extend over a period covering a complete
>> >> >> >tax year" means the taxpayer should not visit the UK in the tax year
>> >> >> >but when I phone HMRC they seem to think that spending 10 days in the
>> >> >> >UK in the tax year still counts as absence from the UK!
>>
>> >> >> No, see 8.3 and the 91 day average rule
>>
>> >> >I understand there are other conditions but IR20 says: "If you do not
>> >> >meet all of these conditions, you will remain resident
>> >> >and ordinarily resident in the UK "
>>
>> >> >Why do they ignore the absent from UK condition?
>>
>> >> They don't, they tell you what they classify as an absence and how
>> >> much time can be spent in the UK.
>>
>> >Where do they say what they class as an absence? I assume you will get
>> >this wrong because you don't have a clue but go ahead.
>>
>> Try reading again 8.3 where they clearly state how many days you can
>> spend in the UK and be considered absent.
>>
>8.3 explains how you calculate average visits to the UK. Average
>visits are referred to in a separate condition:
>
>"average less than 91 days a tax year. This average is taken over the
>period of absence up to a maximum of four years – see 8.3 which will
>show you how to work out this average. Any days you spend in the UK
>because of exceptional circumstances beyond your control, for example
>an illness which prevents you from travelling, are not normally
>counted for this purpose."
>
>Nobody else has disagreed with me and you can't raise anything of
>relevance so because you don't seem to understand I will summarise the
>problem.
>
>One of the conditions states: “you are leaving to work abroad under a
>contract of employment for at least a whole tax year”
>
>All of the conditions are relevant because of:  “If you do not meet
>all of these conditions, you will remain resident and ordinarily
>resident in the UK”
>
>Given the condition at the top refers to working abroad for at least a
>whole tax year, what does this condition add?: “you will be absent
>from the UK for at least a whole tax year”
>
>Surely that must refer to physical absence otherwise it is covered in
>the condition at the top and therefore unnecessary.

No.  For I could be leaving to work abroad for the tax year, but
return for every weekend and other days as long as I do not exceed the
186 days I am considered absent.   This was clearly pointed out to you
on Accountancy web....why did you not grasp it then?

--
Ferrit

 ()'.'.'()
 ( (T) )
 ( ) . ( )
 (")_(")
"I always babble nonsense to people" 
Patrick Barker

On 28 Aug, 21:37, Alan Ferris  wrote:
> On Fri, 28 Aug 2009 01:47:21 -0700 (PDT), PeterSaxton
>
>
>
>
>
>  wrote:
> >On 28 Aug, 07:53, Alan Ferris  wrote:
> >> On Thu, 27 Aug 2009 10:59:24 -0700 (PDT), PeterSaxton
>
> >>  wrote:
> >> >On 27 Aug, 18:30, Alan Ferris  wrote:
> >> >> On Thu, 27 Aug 2009 03:16:15 -0700 (PDT), PeterSaxton
>
> >> >>  wrote:
> >> >> >On 26 Aug, 17:24, Alan Ferris  wrote:
> >> >> >> On Wed, 26 Aug 2009 04:46:06 -0700 (PDT), PeterSaxton
>
> >> >> >>  wrote:
> >> >> >> >My view is that "the individual absence from the United Kingdom and
> >> >> >> >the employment itself both extend over a period covering a complete
> >> >> >> >tax year" means the taxpayer should not visit the UK in the tax year
> >> >> >> >but when I phone HMRC they seem to think that spending 10 days in the
> >> >> >> >UK in the tax year still counts as absence from the UK!
>
> >> >> >> No, see 8.3 and the 91 day average rule
>
> >> >> >I understand there are other conditions but IR20 says: "If you do not
> >> >> >meet all of these conditions, you will remain resident
> >> >> >and ordinarily resident in the UK "
>
> >> >> >Why do they ignore the absent from UK condition?
>
> >> >> They don't, they tell you what they classify as an absence and how
> >> >> much time can be spent in the UK.
>
> >> >Where do they say what they class as an absence? I assume you will get
> >> >this wrong because you don't have a clue but go ahead.
>
> >> Try reading again 8.3 where they clearly state how many days you can
> >> spend in the UK and be considered absent.
>
> >8.3 explains how you calculate average visits to the UK. Average
> >visits are referred to in a separate condition:
>
> >"average less than 91 days a tax year. This average is taken over the
> >period of absence up to a maximum of four years – see 8.3 which will
> >show you how to work out this average. Any days you spend in the UK
> >because of exceptional circumstances beyond your control, for example
> >an illness which prevents you from travelling, are not normally
> >counted for this purpose."
>
> >Nobody else has disagreed with me and you can't raise anything of
> >relevance so because you don't seem to understand I will summarise the
> >problem.
>
> >One of the conditions states: “you are leaving to work abroad under a
> >contract of employment for at least a whole tax year”
>
> >All of the conditions are relevant because of:  “If you do not meet
> >all of these conditions, you will remain resident and ordinarily
> >resident in the UK”
>
> >Given the condition at the top refers to working abroad for at least a
> >whole tax year, what does this condition add?: “you will be absent
> >from the UK for at least a whole tax year”
>
> >Surely that must refer to physical absence otherwise it is covered in
> >the condition at the top and therefore unnecessary.
>
> No.  For I could be leaving to work abroad for the tax year, but
> return for every weekend and other days as long as I do not exceed the
> 186 days I am considered absent.   This was clearly pointed out to you
> on Accountancy web....why did you not grasp it then?
>
Yet again you fail to answer the question. You must be too stupid to
understand.

What does the condition "you will be absent from the UK for at least a
whole tax year" add to the list of other conditions?

You don't seem to understand the difference between how HMRC use the
split year rules and their own published guidance.

Nobody on AccountingWEB - to give the website it's correct name -
maybe you have difficulty with words? - has explained why HMRC use the
rules differently from their own published guidance either.

Let's make it simple. What about this list of rules?

1. You have to be over 18,
2. You have to be under 65, and
3. You cannot be 12.

All of the above rules have to be met.

Rule 3 is irrelevant because it is covered by rule 1.

Let us call the following condition rule 1: “you are leaving to work
abroad under a
contract of employment for at least a whole tax year”

Let us call the following condition rule 2: "you will be absent from
the UK for at least a whole tax year"

What does rule 2 add to rule 1?

Exactly, all you logical people out there can see that rule 2 adds
nothing unless absent means you cannot return even for holidays. If
you could return for holidays then rule 1 is sufficient.

Ferrit, your brain is obviously not designed for understanding the
above. I expect a: "But this goes to 11" statement now.

PeterSaxton wrote:

> Let us call the following condition rule 1: ?you are leaving to work
> abroad under a
> contract of employment for at least a whole tax year?
> 
> Let us call the following condition rule 2: "you will be absent from
> the UK for at least a whole tax year"
> 
> What does rule 2 add to rule 1?
> 
> Exactly, all you logical people out there can see that rule 2 adds
> nothing unless absent means you cannot return even for holidays. If
> you could return for holidays then rule 1 is sufficient.

I don't think so.  What does rule 1 mean?

For one thing, it depends on what it means by "to".  :-)

Yes, really.  It could mean "with the intention of".  If so, it's easy
to answer your question:  Rule 1 requires that you *intend*, at the time
you leave, to work abroad for the stated time, to which rule 2 adds that
you are *in fact* absent for that long.

Of course "to" could simply mean "in order to", but we still need
to analyse the wording to see what exactly the phrase "for at least
a whole tax year" attaches to.  There are three possibilities:
(1) leaving, (2) working, (3) the contract.  Case 3 boils down to
the same issue of intent already mentioned, given that contracts can
be broken or renegotiated.  Case 1 seems to be the one which aligns
with your interpretation that rule 2 would add nothing, however I
think case 2, or perhaps a combination of 2 and 3, is likeliest:

You leave in order "to work for .. a .. year".  There is still an
implication of intent because once you've actually left, the nature
of the work under the contract is subject to change (the new employer
could transfer you to a UK office), or the terms of the contract could
be renegotiated (e.g. its duration shortened), or you could resign
or get fired.

So we are still stuck with the interpretation that rule 1 might
imply only an intention of absence, and rule 2 adds that there must
be actual absence.  Rule 2 cannot therefore be taken to imply that
the absence must be total to the extent that under no circumstances
must you set foot on UK soil for the entire duration of the "absence",
and so it is natural to apply the definition of "absence" given
elsewhere in the rules also to its use within rule 2, i.e. that the
absence admits a limited amount of presence.

In any case, even if you do in fact *work* exclusively abroad, you're
not going to be working 7/52, and there is no earthly reason why the
tax rules should wish to prevent you spending your holidays in the UK.

On 29 Aug, 09:15, Ronald Raygun <no.s...@localhost.localdomain> wrote:
> PeterSaxton wrote:
> > Let us call the following condition rule 1: ?you are leaving to work
> > abroad under a
> > contract of employment for at least a whole tax year?
>
> > Let us call the following condition rule 2: "you will be absent from
> > the UK for at least a whole tax year"
>
> > What does rule 2 add to rule 1?
>
> > Exactly, all you logical people out there can see that rule 2 adds
> > nothing unless absent means you cannot return even for holidays. If
> > you could return for holidays then rule 1 is sufficient.
>
> I don't think so.  What does rule 1 mean?
>
> For one thing, it depends on what it means by "to".  :-)
>
> Yes, really.  It could mean "with the intention of".  If so, it's easy
> to answer your question:  Rule 1 requires that you *intend*, at the time
> you leave, to work abroad for the stated time, to which rule 2 adds that
> you are *in fact* absent for that long.
>
> Of course "to" could simply mean "in order to", but we still need
> to analyse the wording to see what exactly the phrase "for at least
> a whole tax year" attaches to.  There are three possibilities:
> (1) leaving, (2) working, (3) the contract.  Case 3 boils down to
> the same issue of intent already mentioned, given that contracts can
> be broken or renegotiated.  Case 1 seems to be the one which aligns
> with your interpretation that rule 2 would add nothing, however I
> think case 2, or perhaps a combination of 2 and 3, is likeliest:
>
> You leave in order "to work for .. a .. year".  There is still an
> implication of intent because once you've actually left, the nature
> of the work under the contract is subject to change (the new employer
> could transfer you to a UK office), or the terms of the contract could
> be renegotiated (e.g. its duration shortened), or you could resign
> or get fired.
>
> So we are still stuck with the interpretation that rule 1 might
> imply only an intention of absence, and rule 2 adds that there must
> be actual absence.  Rule 2 cannot therefore be taken to imply that
> the absence must be total to the extent that under no circumstances
> must you set foot on UK soil for the entire duration of the "absence",
> and so it is natural to apply the definition of "absence" given
> elsewhere in the rules also to its use within rule 2, i.e. that the
> absence admits a limited amount of presence.
>
> In any case, even if you do in fact *work* exclusively abroad, you're
> not going to be working 7/52, and there is no earthly reason why the
> tax rules should wish to prevent you spending your holidays in the UK.

"Absence" then has a very unusual meaning. I don't think you can
change what a word means simply because you don't like what the use of
the word requires.

Why didn't HMRC simply refer to start and end of a period of
employment abroad if they are happy for taxpayers to return for
holidays?

If I say I have been absent from London all week and somebody says
that they have seen me in London that week what would anybody think if
I said there's nothing wrong with being in London so I was still
absent!

On 29 Aug, 09:15, Ronald Raygun <no.s...@localhost.localdomain> wrote:
> PeterSaxton wrote:
> > Let us call the following condition rule 1: ?you are leaving to work
> > abroad under a
> > contract of employment for at least a whole tax year?
>
> > Let us call the following condition rule 2: "you will be absent from
> > the UK for at least a whole tax year"
>
> > What does rule 2 add to rule 1?
>
> > Exactly, all you logical people out there can see that rule 2 adds
> > nothing unless absent means you cannot return even for holidays. If
> > you could return for holidays then rule 1 is sufficient.
>
> I don't think so.  What does rule 1 mean?
>
> For one thing, it depends on what it means by "to".  :-)
>
> Yes, really.  It could mean "with the intention of".  If so, it's easy
> to answer your question:  Rule 1 requires that you *intend*, at the time
> you leave, to work abroad for the stated time, to which rule 2 adds that
> you are *in fact* absent for that long.
>
> Of course "to" could simply mean "in order to", but we still need
> to analyse the wording to see what exactly the phrase "for at least
> a whole tax year" attaches to.  There are three possibilities:
> (1) leaving, (2) working, (3) the contract.  Case 3 boils down to
> the same issue of intent already mentioned, given that contracts can
> be broken or renegotiated.  Case 1 seems to be the one which aligns
> with your interpretation that rule 2 would add nothing, however I
> think case 2, or perhaps a combination of 2 and 3, is likeliest:
>
> You leave in order "to work for .. a .. year".  There is still an
> implication of intent because once you've actually left, the nature
> of the work under the contract is subject to change (the new employer
> could transfer you to a UK office), or the terms of the contract could
> be renegotiated (e.g. its duration shortened), or you could resign
> or get fired.
>
> So we are still stuck with the interpretation that rule 1 might
> imply only an intention of absence, and rule 2 adds that there must
> be actual absence.  Rule 2 cannot therefore be taken to imply that
> the absence must be total to the extent that under no circumstances
> must you set foot on UK soil for the entire duration of the "absence",
> and so it is natural to apply the definition of "absence" given
> elsewhere in the rules also to its use within rule 2, i.e. that the
> absence admits a limited amount of presence.
>
> In any case, even if you do in fact *work* exclusively abroad, you're
> not going to be working 7/52, and there is no earthly reason why the
> tax rules should wish to prevent you spending your holidays in the UK.

If they think it's ok to spend holidays and certain other activities
in the UK why don't they say so?

It's better than using a word that is incorrect.

PeterSaxton wrote:

> "Absence" then has a very unusual meaning. I don't think you can
> change what a word means simply because you don't like what the use of
> the word requires.

I don't think it's such an unusual meaning.  Not many concepts are
always applied in a black and white fashion, they admit to shades of
gray.  In this case HMRC (or possibly even Parliament itself) chose
to define absence for tax purposes as involving a physical absence
which is only predominant rather than complete.

> Why didn't HMRC simply refer to start and end of a period of
> employment abroad if they are happy for taxpayers to return for
> holidays?

Presumably because they are happy for taxpayers to return for any
reason, not just for holidays, and also because they are happy for
employment to be the reason for beginning the absence but not
necessarily for sustaining its entire duration.  But mostly because
they didn't want to have to repeat a long phrase throughout their
documents; they needed a single word to describe the "period of
being abroad", and "absence" seemed closest at hand.

> If I say I have been absent from London all week and somebody says
> that they have seen me in London that week what would anybody think if
> I said there's nothing wrong with being in London so I was still
> absent!

OK, in the absence (heh!) of any additional information, "absent all
week" would normally be taken to imply a 0% presence.  But take out
the word "all" and that's no longer the case.

If you said you were "absent that week", it would only mean that your
presence during that week was less than 100%.  Context might add an
implication that presence was very much less than 100%, perhaps even
much less than 50%, but we don't know.  You'd need to provide more
detail if it were necessary to dispel the vagueness.

In the HMRC case, they *have* provided more detail, by defining that
they take "absence for a whole tax year" to mean that you are more
absent than present, to the tune of your presence not exceeding 182
days in any one tax year, and averaging no more than 91 days per tax
year over the whole (potentially multi-year) period of absence.

On 30 Aug, 10:33, Ronald Raygun <no.s...@localhost.localdomain> wrote:
> PeterSaxton wrote:
> > "Absence" then has a very unusual meaning. I don't think you can
> > change what a word means simply because you don't like what the use of
> > the word requires.
>
> I don't think it's such an unusual meaning.  Not many concepts are
> always applied in a black and white fashion, they admit to shades of
> gray.  In this case HMRC (or possibly even Parliament itself) chose
> to define absence for tax purposes as involving a physical absence
> which is only predominant rather than complete.
>
> > Why didn't HMRC simply refer to start and end of a period of
> > employment abroad if they are happy for taxpayers to return for
> > holidays?
>
> Presumably because they are happy for taxpayers to return for any
> reason, not just for holidays, and also because they are happy for
> employment to be the reason for beginning the absence but not
> necessarily for sustaining its entire duration.  But mostly because
> they didn't want to have to repeat a long phrase throughout their
> documents; they needed a single word to describe the "period of
> being abroad", and "absence" seemed closest at hand.
>
It would be simply to give a definition.

> > If I say I have been absent from London all week and somebody says
> > that they have seen me in London that week what would anybody think if
> > I said there's nothing wrong with being in London so I was still
> > absent!
>
> OK, in the absence (heh!) of any additional information, "absent all
> week" would normally be taken to imply a 0% presence.  But take out
> the word "all" and that's no longer the case.
>
What about absence for a full tax year? Doesn't that imply a 0%
presence?

> If you said you were "absent that week", it would only mean that your
> presence during that week was less than 100%.  Context might add an
> implication that presence was very much less than 100%, perhaps even
> much less than 50%, but we don't know.  You'd need to provide more
> detail if it were necessary to dispel the vagueness.
>
> In the HMRC case, they *have* provided more detail, by defining that
> they take "absence for a whole tax year" to mean that you are more
> absent than present, to the tune of your presence not exceeding 182
> days in any one tax year, and averaging no more than 91 days per tax
> year over the whole (potentially multi-year) period of absence.

This is my point. One condition explains that the absence for
employment has to be over a full tax year and another two conditions
give the 182 day rule and 91 day rule. There's the statement that all
conditions need to apply. Why have another statement which seems to
repeat the full tax year rule if "absence" doesn't mean absence?

PeterSaxton wrote:

> On 30 Aug, 10:33, Ronald Raygun <no.s...@localhost.localdomain> wrote:
>>
>> OK, in the absence (heh!) of any additional information, "absent all
>> week" would normally be taken to imply a 0% presence.  But take out
>> the word "all" and that's no longer the case.
> 
> What about absence for a full tax year? Doesn't that imply a 0%
> presence?

No, because my condition "in the absence of any additional information"
is not satisfied:  The *have* given additional information which
clarifies what "absence" means.

> This is my point. One condition explains that the absence for
> employment has to be over a full tax year and another two conditions
> give the 182 day rule and 91 day rule. There's the statement that all
> conditions need to apply. Why have another statement which seems to
> repeat the full tax year rule if "absence" doesn't mean absence?

Let's revisit the extract from 8.5 which you posted originally.  It
gives four conditions which must all be met (in this case in order
for the period of non-residence to commence on the day after your
departure).

Condition 1 deals with the purpose of your leaving.

Condition 2 deals with tacking a holiday onto the beginning.

Condition 3 is that your absence must last for at least a whole tax year.

Condition 4 deals with "visits to the UK after you have left to begin your
overseas employment".

It is pretty unambiguously clear that the "visits" in condition 4 are
expected to occur *during* the "absence" in condition 3 and must therefore
of necessity interrupt it.  Clearly therefore condition 3 does not require
the absence to be absolutely uninterrupted.

Condition 4 clarifies that the "absence" in condition 3 will in effect
be *treated* as uninterrupted, provided that any actual interruptions
are small enough in aggregate as to fall within the 182 and 91 day rules.

On 31 Aug, 13:31, Ronald Raygun <no.s...@localhost.localdomain> wrote:
> PeterSaxton wrote:
> > On 30 Aug, 10:33, Ronald Raygun <no.s...@localhost.localdomain> wrote:
>
> >> OK, in the absence (heh!) of any additional information, "absent all
> >> week" would normally be taken to imply a 0% presence.  But take out
> >> the word "all" and that's no longer the case.
>
> > What about absence for a full tax year? Doesn't that imply a 0%
> > presence?
>
> No, because my condition "in the absence of any additional information"
> is not satisfied:  The *have* given additional information which
> clarifies what "absence" means.
>
> > This is my point. One condition explains that the absence for
> > employment has to be over a full tax year and another two conditions
> > give the 182 day rule and 91 day rule. There's the statement that all
> > conditions need to apply. Why have another statement which seems to
> > repeat the full tax year rule if "absence" doesn't mean absence?
>
> Let's revisit the extract from 8.5 which you posted originally.  It
> gives four conditions which must all be met (in this case in order
> for the period of non-residence to commence on the day after your
> departure).
>
> Condition 1 deals with the purpose of your leaving.
>
> Condition 2 deals with tacking a holiday onto the beginning.
>
> Condition 3 is that your absence must last for at least a whole tax year.
>
> Condition 4 deals with "visits to the UK after you have left to begin your
> overseas employment".
>
> It is pretty unambiguously clear that the "visits" in condition 4 are
> expected to occur *during* the "absence" in condition 3 and must therefore
> of necessity interrupt it.  Clearly therefore condition 3 does not require
> the absence to be absolutely uninterrupted.
>
> Condition 4 clarifies that the "absence" in condition 3 will in effect
> be *treated* as uninterrupted, provided that any actual interruptions
> are small enough in aggregate as to fall within the 182 and 91 day rules.

Condition 1 and 3 both relate to the future:

"you are leaving to work abroad under a contract of employment for at
least a whole tax year"

"you will be absent from the UK for at least a whole tax year"

what does 3 add to 1?

Condition 4 can't clarify - it stands alone.

Alan is funny. He's like a barracker adding nothing to the debate.

PeterSaxton wrote:

> Condition 1 and 3 both relate to the future:
> 
> "you are leaving to work abroad under a contract of employment for at
> least a whole tax year"
> 
> "you will be absent from the UK for at least a whole tax year"
> 
> what does 3 add to 1?

Condition 1 is that the purpose of leaving must be to work abroad under
a contract of employment.  Strictly a taxpayer who is leaving with the
intention of working abroad for more than a tax year, particularly if
able to corroborate this intention by producing a copy of a pre-negotiated
contract which covers a period which does span at least a whole tax year,
has satisfied condition 1 as soon as he has left, even if he subsequently
cuts short his stay abroad before a whole tax year has expired.

What condition 3 adds is that the absence must not merely be intended
to last that long, but that it will in fact do so.  This is phrased in
the future tense only because in context the grammatical point of
reference is the departure date.

> Condition 4 can't clarify - it stands alone.

It doesn't stand totally alone.  All four conditions stand together
as part of subsection 8.5.

It stands alone only in the sense that it talks about something else,
about "visits" rather than "absence".  But the fact that it talks about
visits at all reveals the underlying assumption in the overarching
context of subsection 8.5 that the "absence" referred to in 3 is
permitted to be dotted with temporary gaps.

It therefore clarifies that what 3's "absence" must mean is the period
between *initial* departure and *final* return, and that any temporary
returns (provided they meet the detailed criteria given) will not have
the effect of breaking the whole absence into several smaller ones,
which would typically end up being shorter than whole tax years.

Do you really think that the rules intend a taxpayer to lose his
non-resident status simply as a result of making short home visits
during a long period of overseas employment?  Common sense suggests
they do not.

On 1 Sep, 11:10, Ronald Raygun <no.s...@localhost.localdomain> wrote:
> PeterSaxton wrote:
> > Condition 1 and 3 both relate to the future:
>
> > "you are leaving to work abroad under a contract of employment for at
> > least a whole tax year"
>
> > "you will be absent from the UK for at least a whole tax year"
>
> > what does 3 add to 1?
>
> Condition 1 is that the purpose of leaving must be to work abroad under
> a contract of employment.  Strictly a taxpayer who is leaving with the
> intention of working abroad for more than a tax year, particularly if
> able to corroborate this intention by producing a copy of a pre-negotiated
> contract which covers a period which does span at least a whole tax year,
> has satisfied condition 1 as soon as he has left, even if he subsequently
> cuts short his stay abroad before a whole tax year has expired.
>
> What condition 3 adds is that the absence must not merely be intended
> to last that long, but that it will in fact do so.  This is phrased in
> the future tense only because in context the grammatical point of
> reference is the departure date.
>
I disagree. If they make a condition in the future tense it must be
treated as such.

> > Condition 4 can't clarify - it stands alone.
>
> It doesn't stand totally alone.  All four conditions stand together
> as part of subsection 8.5.
>
> It stands alone only in the sense that it talks about something else,
> about "visits" rather than "absence".  But the fact that it talks about
> visits at all reveals the underlying assumption in the overarching
> context of subsection 8.5 that the "absence" referred to in 3 is
> permitted to be dotted with temporary gaps.
>
It stands alone in the sense that it is a condition that has to be
complied with in isolation.

> It therefore clarifies that what 3's "absence" must mean is the period
> between *initial* departure and *final* return, and that any temporary
> returns (provided they meet the detailed criteria given) will not have
> the effect of breaking the whole absence into several smaller ones,
> which would typically end up being shorter than whole tax years.
>
> Do you really think that the rules intend a taxpayer to lose his
> non-resident status simply as a result of making short home visits
> during a long period of overseas employment?  Common sense suggests
> they do not.

I don't agree that rules can be discarded simply because it's "not
common sense".

If rules cannot be framed clearly by the people who have
responsibility for the task then they should be replaced.

PeterSaxton wrote:

> On 1 Sep, 11:10, Ronald Raygun <no.s...@localhost.localdomain> wrote:
>> PeterSaxton wrote:
>> > Condition 1 and 3 both relate to the future:
>>
>> > "you are leaving to work abroad under a contract of employment for at
>> > least a whole tax year"
>>
>> > "you will be absent from the UK for at least a whole tax year"
>>
>> > what does 3 add to 1?
>>
>> Condition 1 is that the purpose of leaving must be to work abroad under
>> a contract of employment.  Strictly a taxpayer who is leaving with the
>> intention of working abroad for more than a tax year, particularly if
>> able to corroborate this intention by producing a copy of a
>> pre-negotiated contract which covers a period which does span at least a
>> whole tax year, has satisfied condition 1 as soon as he has left, even if
>> he subsequently cuts short his stay abroad before a whole tax year has
>> expired.
>>
>> What condition 3 adds is that the absence must not merely be intended
>> to last that long, but that it will in fact do so.  This is phrased in
>> the future tense only because in context the grammatical point of
>> reference is the departure date.
> 
> I disagree. If they make a condition in the future tense it must be
> treated as such.

What do you mean by "treated as such"?  The point is that it is impossible
to determine *on the departure date* whether condition 3 is met or not.
We must wait until a future date before we can resolve this.  Suppose a
person leaves today (3rd September 2009).  Then we won't know the answer
before his return date or 6th April 2011, whichever comes first.  If he
returns before 6th April 2011, we will know *on his return date* that the
condition *is not met*, and if he is still away on 6th April 2011, we will
know *on that date* that the condition *is met*.

Mind you, you could argue that, even though we won't know for some time
whether the condition is met or not, we could take the view that if it is
met, it is met with effect from today.  Is that what you mean by treating
the future tense as such?  I wouldn't disagree with that.

>> > Condition 4 can't clarify - it stands alone.
>>
>> It doesn't stand totally alone.  All four conditions stand together
>> as part of subsection 8.5.
>>
>> It stands alone only in the sense that it talks about something else,
>> about "visits" rather than "absence".  But the fact that it talks about
>> visits at all reveals the underlying assumption in the overarching
>> context of subsection 8.5 that the "absence" referred to in 3 is
>> permitted to be dotted with temporary gaps.
> 
> It stands alone in the sense that it is a condition that has to be
> complied with in isolation.

It's not just about compliance, though.  The four conditions aren't
isolated, but appear together as part of subparagraph 8.5, and this
whole subparagraph must make sense as a unit, and must have a common
and coherent context.

The way in which the words "absence" and "visits" appear in this
context makes clear, without need of further explicit definition, that
the "visits" in 4 are interruptions to the "absence" in 3, and that
therefore the "absence" in 3 can only be understood as the period from
first departure to last return.  Condition 3 is therefore satisfied
(or not) purely on the basis of these two dates, irrespective of how
long the interrupting visits (if any) are, and it is only condition 4
which limits their lengths.

>> Do you really think that the rules intend a taxpayer to lose his
>> non-resident status simply as a result of making short home visits
>> during a long period of overseas employment?  Common sense suggests
>> they do not.
> 
> I don't agree that rules can be discarded simply because it's "not
> common sense".

All rules of law are founded on at least a modicum of common sense, and
in the event of dispute or ambiguity it is up to the courts to determine
what the rules mean, or were intended to mean.  The courts will use
common sense to guide their interpretation.

Sadly, the court's common sense and an ordinary person's common sense
won't always concur, and so I very much agree that care should be
taken to avoid framing rules in an unclear or ambiguous way.

> If rules cannot be framed clearly by the people who have
> responsibility for the task then they should be replaced.

"They"?  The rules or the people?
You need to frame your comments more clearly.  :-)

Alas, nobody but you seems to think that these particular rules
were framed unclearly.

To return to your originally posted situation:

> A taxpayer left the UK in 2006-2007 intending to work abroad for
> several years.

So that's condition 1 satisfied.  You don't give the date of leaving,
and it's not really important, but let's say for the sake of argument
that she left on 1st March 2007.  Provided she then started work
more or less straight away (without first having a holiday), then
condition 2 is satisfied in terms of treating her as non-resident
from 2nd March 2007.

> She returned to the UK for about 10 days in 2007-2008 tax year.
> 
> She returned to the UK on 11 April 2008 and started work in the UK on
> 13 April 2008.

So she was absent from 2nd March 2007 until 10th April 2008.  That period
spans the whole tax year 2007-2008.  That's condition 3 satisfied.

During her absence she visited the UK just once, namely for 10 days
in 2007-2008.  Since this is less than 91 days, condition 4 is satisfied.

Bingo!  All four conditions are satisfied.

Satisfied?