What does "absent from the UK for at least a whole tax year" actuallymean?


R

Ronald Raygun

PeterSaxton said:
"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.
 
P

PeterSaxton

I have been absent from work due to illness, yet I have still visited
my work to drop off a sick note.  Your logic now says I was not absent
from work and therefore did not need the sick note as a half hour
attendance stops me being absent.
As usual you are confused. You needed a sick note because you were not
working.
 
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P

PeterSaxton

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.


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.
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?
 
R

Ronald Raygun

PeterSaxton said:
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.
 
A

Alan Ferris

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


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.
Peter will not accept he is wrong. This has been explained elsewhere
and he is still trying to argue he is right and the rules are wrong.

--
Ferrit

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

Alan Ferris

As usual you are confused. You needed a sick note because you were not
working.
But you miss the point, was I absent from work or wasn't I? Just
because I spent 1/2 hour there does not mean I was not absent due to
illness.

--
Ferrit

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

PeterSaxton

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


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.
 
R

Ronald Raygun

PeterSaxton said:
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.
 
P

PeterSaxton

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.
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.
 
A

Alan Ferris

If rules cannot be framed clearly by the people who have
responsibility for the task then they should be replaced.
But Peter, you are the only person having a problem with the rules.
Are you suggesting that everybody here and on AccountingWeb are
deliberately misleading you by stating that they understand the rules.

--
Ferrit

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

Ronald Raygun

PeterSaxton said:
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.
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.
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?
 

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