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Mishcon Academy: Digital Sessions - Tax Aware: How to handle your business and personal tax needs from home

Posted on 14 May 2020

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

This session was recorded on 7 May 2020. The information in the film is correct at the time of recording.

Nicola Simmons

Welcome everyone and thank you very much for joining us today. My name is Nicola Simmons and I am an associate in our Tax and Wealth Planning team here at Mishcon.

Today we're discussing how to handle your business and personal needs from home. I'm joined by Patrick Harney who is a Partner in our Private Tax and Wealth Planning team, Jonathan Legg a Partner in our Real Estate Tax team and Paul Noble a Partner in our Tax Disputes and Investigations team.

So, I'm discussing how spending additional time in the UK can affect yours and your company's tax residence.

Now, under normal circumstances whether you're UK tax-resident will depend upon your ties to the UK and the number of days you spend here. However, if you spend more time in the UK than you expect because of what HMRC would deem 'exceptional circumstances', up to 60 days can be disregarded from your UK day spend count. HMRC have actually published guidance specifically on this, and have confimed that the days you spend in the UK for the following reasons, would indeed be treated as 'exceptional circumstances':

When you're quarantined or advised by a health professional or public health guidance to self-isolate in the UK;

Secondly the UK has officially advised you not to leave the UK;

You can't leave the UK because of a result of the closure of international border;

Or your employer asks you to return to the UK temporarily. 

This leads to the practical question of why would that matter. Becoming a UK tax resident individual will affect your exposure to UK tax, both in terms of payment and filing obligations and your tax residence largely affects how you are taxed in terms of income tax and capital gains tax in the UK. You becoming UK tax resident may affect your domicile, and your domicile broadly affects your UK inheritance tax exposure.

Whilst you may become UK tax resident as we've mentioned because you're actually not usually in the UK or you weren't born here, you might actually still be tax resident elsewhere. That can be double-taxation. There are ways out of it but it's good to be aware of that exposure so that you can manage your risk.

Lastly, thinking still from a personal tax perspective, if you're UK tax resident this year, that will limit the number of days you can spend in the UK next year without becoming UK tax resident.

So then turning to the company side, if senior members of businesses are making key decisions from the UK, that company may either inadvertently become UK tax reisndet as a whole or they might actually create a UK permanent establishment. Both of those outcomes could give rise to significant UK tax repercussions and reporting obligations. Both HMRC and the OECD have agreed that any temporary residence in the UK by company directors or occasional board meetings being held in the UK due to COVID-19 shouldn’t impact the company's permanent establishment or tax residence position.

This is only guidance and there haven’t been any laws changed to put that into any form of statute.

Is there anything you can do to prevent or prepare? So, looking at the individual – they can work out themselves or ideally seek advice from a professional to ascertain the number of days they can spend in the current tax year without becoming UK tax resident. If it turns out there is nothing you can do, there are important planning steps that you can take to significantly reduce your UK tax exposure going forward.

Looking at the company on the other hand, in case of any change of guidance we would recommend checking the other directors aren't in the UK as well, checking the tax residence of those other directors and possibly not counting towards the quorum or the vote at board meetings. Also, it's a good idea to ensure that any board meetings that are held here, specifically note that you are in the UK because of COVID.

But in all cases it's important to gather and retain evidence to show when you were in the UK, why, for how long and what you did while you were here. Where there is any doubt, you might also wish to liaise with HMRC to negotiate your tax status or obligations. They're expected to take a more lenient view given the circumstances.

Now that we've discussed personal and corporate tax residence issues, we can move on to Patrick Harney. Please could you tell us what the options are for people who need to execute their wills from home?

Patrick Harney

There is no option really but to comply with the provisions of the Wills Act 1837. The Wills Act provides that two witnesses need to be in the room at the same time, they need to see the testator/ testatrix sign the will and then they need to append their signatures as witnesses to the will.

We've amended our standard signing from home will execution instructions to include additional information on initialling every page and have the witnesses initial every page and then just because England doesn’t allow witnessing via video conference it doesn’t mean we, as the solicitor for a client, can't be there across the video conference when the client is executing their will. And if we do that, it's important for the solicitor to take a proper attendance note, particularly if there's issues around capacity of the person making the will or issues around undue influence.

Nicola Simmons

Does your answer change for Americans based here at the moment?

Patrick Harney

It does, so what's interesting to note is that when you're doing estate planning for US citizens in the UK, its always necessary to kind of navigate two countries' tax systems. Good and efficient estate planning for US citizens in the UK who are exposed to estate taxes in both countries involves drafting an estate plan that does these two things utilising exemptions in both countries. And the second thing you look to do is to defer estate taxes in both countries until the second death. Even though you need to navigate two systems to do an efficient estate plan, you only need to comply with the law of one country in order to validly execute a will if it's for a US citizen client. Even before COVID, electronic wills, because of the Wills Act 1963, are now part of English law because we say we'll recognise them if they are valid under the law of the nationality. As a practical matter, it still be better if you can to comply with the laws in both England and in the States to make probate easier, but it doesn’t mean you can't probate the will if you just satisfy the laws of the United States.

Nicola Simmons

what would you say to trust companies that have directors who are stranded here during the lockdown? Would that impact the tax residence of the trust itself?

Patrick Harney

the first question is 'does that director's UK presence trigger UK residence of that banking trust company. One director being locked down in the UK unless there's very poor corporate governance, shouldn't in normal circumstances except in extreme facts cause the entire offshore bank and trust company to become UK resident. Once it's established that the bank and trust company isn't UK resident it's then necessary to look at the residence of any trusts of which the bank trust company is a trustee. In a situation where the sole trustee of a trust is a non-UK resident company, it can only be UK resident if the trust company carries on a business, it conducts core trustee activities and it conducts them through a UK permanent establishment.

Nicola Simmons

our next speaker is Jonathan Legg. There have been several changes in 2019 and this year regarding the tax on UK land, is it possible for you to summarise what they are please?

Jonathan Legg

In 2019 we had the extension of capital gains tax to non-residential land by non-residents. From April 2019 both UK resident individuals and non-UK resident persons are now all subject to capital gains tax on residential and non-residential disposals.

Offshore landlords previously paid income tax and with effect from April 2020 they may now pay corporation tax.

They also changed from April 2020 the notification rules for capital gains tax, so actually for the first time UK residents who dispose of certain types of residential property now have to notify them of those disposals in 30 days.

Nicola Simmons

in terms of those notification obligations they are now quite onerous aren’t they for both, as you mentioned, UK residents and non-UK residents across the board?

Jonathan Legg

there's a big difference between whether you're a UK resident or a non-UK resident. So for UK residents from 6th April if you dispose of residential property and there's a gain that's subject to capital gains tax, you have to notify within 30 days and you have to pay that tax within 30 days and you can do that online. For non-UK residents, they have to notify of disposals of residential property, non-residential property and even so-called indirect tax disposals which basically means if a non-resident sells shares in a company that owns land then they actually have to report any of those disposals.

Nicola Simmons

we now move on to Paul Noble. What's been happening with HMRC and Tribunals, have they been working from home like the rest of us?

Paul Noble

so if we start first of all with the tax tribunal, we have a general stay of proceedings until the end of June now so basically that means a freeze if you like so nothing is really being progressed in terms of appeals and that's going to cause a further backlog of the system.

HMRC are working, they're working very hard, very hard in some areas and are working from home but in relation to tax disputes and investigations they're adopting a 'go slow' approach. So they've written out to people that are subject to investigation offering them a temporary break in proceedings if the client wishes to take that. I talked about resources being reallocated, one of the areas to which they've been re-allocated is in dealing with the payment side of HMRC and dealing with people's enquiries, queries in that area. Things like time to pay agreements and how people can actively manage their taxes.

Nicola Simmons

do you think that there are actually opportunities for settling disputes even now in the current climate?


Paul Noble

one thing that HMRC are actively encouraging is alternative dispute resolution which is a form of mediation for tax cases and HMRC have indicated that they would like to and are trying to move the ADR process to a virtual platform.

Nicola Simmons

so once the dust has settled, what do you think the lasting effects of the measures HMRC have imposed will be?

Paul Noble

well obviously coming back to the backlog of the tribunal which is obviously only going to get worse if things are not being actively worked for the next couple of months. As far as HMRC are concerned, it's encouraging better ways of working. You know, having to work at home is more than encouraging is necessitating them trying to work slightly differently. So I think we'll find a more engaged HMRC, perhaps a slightly quicker moving HMRC in the future. The other thing to think what's going to change is the sting in the tail which will come before too long in the sense that the government have spent a lot of money keeping the economy afloat over the last few weeks and months and somebody is going to have to pay for that. Eventually HMRC's compliance activity will resume to where it was and with an increased emphasis in terms of closing the tax gap, making sure that tax payers are compliant and making sure that people pay what is due and what is right so that you know the UK can get back to where it was.

Nicola Simmons

I've had another question, so are there any notification obligations once an individual becomes UK tax resident?

In short, yes, but not yet, essentially if you become UK tax resident or, indeed, if you just have a UK tax liability that's note dealt with through PAYE or an employee you will have to file a UK tax return but that's only due on 31st January if you're filing online after the tax year that you're dealing with.

There is an option that you can apply for a certificate of UK tax resident. You therefore just claim the UK tax relief by showing HMRC that you've been a UK tax resident. In my experience it's a fairly simple process.

Thank you very much to our audience, for our latest guidance and online content related to COVID-19 please do feel free to visit our hub which is available at Mishcon.com/covid-19. Feel free to contact us on our dedicated email address which is coronavirus@mishcon.com.

That's the end of our presentation so thank you very much and bye for now.

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