The automatic overseas tests
30.Paragraphs 11 to 16 set out five automatic overseas tests. If P meets the conditions for any one of these, P will be non-resident for the tax year for which the test is applied.
31.Paragraph 12 specifies the first automatic overseas test, which is that P will be non-resident for a tax year if P spends fewer than 16 days in the UK in that year, does not die during the year, and was resident for one or more of the three tax years immediately preceding that year. The exclusion for cases of death ensures that P does not automatically become non-resident if P dies early in the tax year.
32.Paragraph 13 specifies the second automatic overseas test, which is that P will be non-resident for a tax year if P spends fewer than 46 days in the UK in that year and was resident for none of the three tax years immediately preceding that year.
33.Paragraph 14 specifies the third automatic overseas test, usually known as “full time work overseas”. P will be non-resident for a tax year if P works sufficient hours overseas for that year without a significant break from work (defined in paragraph 29), has fewer than 31 UK work days in that year and spends fewer than 91 days in the UK in that year (as defined in paragraph 22). A UK work day is a day on which P does more than 3 hours’ work in the UK.
34.Sub-paragraph (2) of paragraph 14 ensures that the special rule in paragraph 23(4) (under which certain days on which P is present in the UK other than at midnight count as days spent in the UK) does not apply for the purposes of the third automatic overseas test.
35.Sub-paragraph (3) of paragraph 14 sets out the steps to follow for the purposes of assessing whether or not P has worked sufficient hours overseas in the tax year. P will have worked sufficient hours overseas if P has worked on average 35 hours or more a week overseas, as calculated by following the steps set out.
36.Sub-paragraph (4) of paragraph 14 specifies that the third automatic overseas test does not apply if P has a relevant job on board a vehicle, aircraft or ship at any time in the year (as defined in paragraph 30) and makes, as part of the job, at least six cross-border trips in the tax year that either begin or end in the UK (or both begin and end in the UK).
37.Paragraph 15 specifies the fourth automatic overseas test. P is non-resident for a tax year if P dies during the year and spends fewer than 46 days in the UK in that year, and either P was non-resident for the two tax years immediately preceding the tax year in which P dies or was non-resident for the tax year immediately preceding that tax year and the tax year before that was a split year by virtue of Case 1, 2 or 3 of Part 3 of this Schedule (see paragraphs 44 to 46). The effect of this provision is to ensure that an individual who dies without establishing three full years of non-residence may in certain circumstances benefit from a 46-day rule equivalent to that in paragraph 13.
38.Paragraph 16 specifies the fifth automatic overseas test which ensures that P’s non-resident status is preserved in certain circumstances where P dies while working overseas. P is automatically non-resident if P dies during a tax year, having already been non-resident under the third automatic overseas test for the two preceding tax years (or for the year preceding the current tax year, with the year before that qualifying for Case 1 split year treatment) and if P meets the third automatic overseas test as modified.
39.Sub-paragraph (3) of paragraph 16 sets out the modifications to be applied to the third automatic overseas test in this situation. The third overseas test (in paragraph 14) is applied so that instead of assessing whether P has worked sufficient hours overseas for the whole tax year, the period assessed is that from the start of the tax year up to the day before the date of death. The permitted number of UK work days and days spent in the UK allowed under paragraph 14(1)(c) and (d) are not reduced.
