Thinking beyond borders
Extended business travelers are likely to be taxed on employment income relating to their UK workdays.
The UK tax year runs from 6 April in each year to 5 April the following year. Up to and including the 2012/13 tax year (i.e. up to 5 April 2013), an individual’s residence was determined by reference to UK case law and guidance from Her Majesty’s Revenue & Customs (“HMRC”), the UK tax authority.
From 6 April 2013 the UK introduced a statutory residence test (“SRT”).
The SRT is made up of the following types of tests:
Automatic overseas tests
An individual will meet the conditions of the automatic overseas test if one of the following conditions applies:
For these purposes a workday is a day with more than three hours of work and may include travel time.
Automatic UK tests
An individual who does not meet any of the above tests will be regarded as automatically resident in the UK when:
If none of the automatic overseas tests and none of the UK tests are met an individual must consider the sufficient ties test to determine their UK residence.
Sufficient ties test
If the above tests are not satisfied, particular ties that an individual may have with the UK and the number of days that the individual spends in the UK have to be considered.
The ties considered are:
The more ties an individual has with the UK, the fewer the number of days that can be spent in the UK before the individual establishes UK residence for a tax year.
Ordinary residence and not ordinary residence
Under the pre-6 April 2013 rules, UK tax law also included the concept of “ordinary residence”. This was broadly for individuals whose intention to remain in the UK for a significant period of time (three or more years) or otherwise met one of the relevant tests. Where an individual was classed as not ordinarily resident, particularly relevant for extended business travelers coming to the UK, they could claim certain UK tax advantages such as overseas workday relief (“OWR”).
The concept of ordinary residence was abolished with effect from 6 April 2013 (with a very small number of exceptions including transitional rules). The impact of this for business travelers who have been regarded as not resident and not ordinarily resident in the UK under the old rules is limited.
OWR is kept as a relief from 6 April 2013 for non-UK domiciled new arrivals . The relief applies for the year of arrival and the next two tax years. Transitional provisions apply to individuals who qualify for relief at 5 April 2013.
A person’s domicile is, broadly, the individual’s permanent homeland. The majority of foreign nationals employed by foreign employers who are extended business travelers or working on secondment to the UK should not be regarded as domiciled in the UK.
Significance of residency and domicile
A non-UK resident is taxable on UK-sourced income.
Subject to certain restrictions, an individual who is resident but non-UK domiciled can receive UK tax relief for days worked outside of the UK in their year of arrival and the two subsequent tax years, if the individual is taxed in the UK on the remittance basis.
Where the remittance basis is claimed, a resident but non-UK domiciled individual is subject to UK tax on foreign income only to the extent that it is remitted to the UK.
Definition of source
Employment income is generally treated as UK-sourced compensation when the employee performs the services while physically located in the UK. Salary, for example, is apportioned between UK and non-UK duties based on workdays.
Technically, there is no threshold/minimum number of days that exempts the employee from the requirements to file tax returns and pay tax in the UK.
To the extent that the individual qualifies for relief in terms of the employment income article of an applicable double tax treaty, there should be no UK tax liability. The treaty exemption will not apply if the UK entity is viewed as the individual’s economic employer. In general, if an employee has a foreign employer, the UK will not take the economic employer position if the employee is in the UK for up to 60 days. Care should also be taken when claiming treaty relief for UK residents claiming the remittance basis, as the denial of relief due to remittance clauses may result in a higher tax charge in the individual’s home country.
All earnings, whether in cash or in the form of a benefit-in-kind, provided by an employer to an employee are taxable unless specifically exempted. Typically, travel expenses to and from the UK (and accommodation) would not be taxable for an extended business traveler.
For the year ending 5 April 2017, earnings are taxed at 20 percent on the first 32,000 British pounds (GBP) of taxable income and 40 percent on the next GBP118,000 of income.
Employers and employees who are liable for social security in the UK pay it with no upper limit. It is likely, however, that most extended business travelers would not be liable for UK social security. This could be for a number of reasons, including:
Tax returns that are filed electronically are due by 31 January following the tax year-end, which is 5 April. Paper returns have an earlier deadline of 31 October following the tax year-end.
If treaty relief applies and the employer has entered into a short-term business visitors agreement with HMRC, individual tax returns do not have to be filed merely to claim the treaty relief, and the Pay-As-You-Earn (PAYE) withholding obligations can be relaxed, subject to certain conditions being met.
Employment income is subject to tax and social security withholding under the PAYE system. If an individual is taxable on employment income, the obligation to withhold rests with either the employer or, if the employer is not operating withholding, it rests with the ‘host’ employer. All employers are now required to report their payroll information to the UK Revenue authority in “real time”. Setting up a new payroll and a new employee to report in real-time can take some time. Therefore it is recommended that employers seek advice as soon as they intend to send an employee on secondment. For short term business visitors, it is recommended that employers obtain a “short term business visitors” agreement with the UK Revenue authority, in order for the payroll reporting obligations to be relaxed for such employees.
If a short-term business visitor’s agreement with HMRC is obtained, these withholding obligations can be relaxed.
There is the potential that a permanent establishment could be created as a result of extended business travel, but this would be dependent on the type of services performed and the level of authority the employee has.
The UK imposes value-added tax (VAT), which is a tax on consumer expenditures. Businesses (where they are VAT registered and fully taxable) do not bear the final costs of VAT. They are able to charge VAT on the supplies that they make (output VAT) and recover VAT on purchases that they have made (input VAT).
There are currently three rates of VAT: standard rate (20 percent, which is charged on the provision of most goods and services), zero rate (0 percent, which is charged on food, books, and children’s clothing), and reduced rate (5 percent, which is charged, for example, on fuel). Attributable input VAT is recoverable on these supplies by businesses.
Some goods and services may be exempt from VAT, such as monitoring, tracking and reporting changes in circumstances of those individuals sponsored under the points based system.
Citizens of EEA (including the European Union (EU)) member states and Swiss nationals do not require permission to work, reside, or visit the United Kingdom. If their dependents are non-EEA then there is a requirement to obtain dependent permission before entry.
Citizens of Croatia, and in the future other nationals who join the EU, require permission to work and live in the UK. The process requires a UK sponsor and leave to enter needs to be acquired prior to travel to the UK.
All other nationals will require permission to work in the UK regardless of the duration of travel to the UK, as well as entry clearance (visa) prior to travel. If the individual is required to visit the UK, then depending on activities being performed, duration and frequency of travel, along with consideration of previous travel to the UK, you may be able to consider the individual as a business traveler. The individual may enter the UK without entry clearance, depending on nationality and whether the individual has an adverse immigration history.
Only registered “A” rated sponsors can sponsor work permission for non-EEA nationals.
The UK has a number of statutory obligations placed on UK-based employers and “A” rated sponsors, which include the following:
In addition to the UK’s domestic legislation that provides relief from international double taxation, the UK has entered into double taxation treaties with more than 100 countries to prevent double taxation, and allow cooperation between the UK and overseas tax authorities in enforcing their respective tax laws.
The UK has a transfer pricing regime. A transfer pricing implication could arise to the extent that the employee is being paid by an entity in one jurisdiction but performing services for the benefit of an entity in another jurisdiction. In other words, a cross-border benefit is being provided. This would also be dependent on the nature and complexity of the services performed.
The UK has data privacy laws. Organizations have a legal duty to keep data private and secure.
The UK does not restrict the flow of sterling or foreign currency into or out of the country. Certain reporting obligations, however, are imposed to control tax evasion and money laundering. Organizations covered by the legislation have a number of obligations, including the requirement to establish the identity of individuals. A bank account cannot be opened in the UK without proof of identity.
Non-deductible costs for assignees include mortgage interest, alimony, tax return preparation fees, and relocation expenses (unless they are ‘qualifying’, then reimbursed deductible expenses are limited to GBP8,000).
UK Employment Tribunals are increasingly willing to accept that individuals may claim UK statutory employment rights (such as the right not to be unfairly dismissed) where a sufficient connection with the UK can be shown. This could potentially apply to employees who are not UK nationals, or who do not work for a UK registered employer or who do not actually work in the UK. In addition, certain mandatory rules apply where a worker is posted from another EU country to the UK, meaning that the worker will be protected by minimum wage, working time and anti-discrimination legislation.
As businesses become increasingly global, we have witnessed a dramatic rise in the number of business travelers now working in foreign jurisdictions.