out a profession, driver’s license, boat license etc?1.5 Tax residence: considerations and implications
To determine if a person should be subject to taxation, countries generally use the following criteria:
• Residence: a country may tax the income of anyone who lives there, regardless of citizenship or whether the income was earned in that country or abroad
• Source: a country may tax any income generated there, regardless of whether the earner is a citizen, resident, or non-resident
• Citizenship: a country may tax the worldwide income of their citizens, regardless of whether they reside in that country or not
For the internationally mobile, the tax position across different countries will be an important concern. But the amount of tax they pay is also of interest to the relevant tax authorities. The simple rule is, the more you pay, the more interesting it becomes – for both sides.
Most countries use residence and/or source when determining if a person should be subject to taxation. The US, and to a lesser extent some other countries,8 are notable exceptions.
The place of residence for tax purposes or tax residence is therefore important in determining how you are taxed. If you have connections with, and spend long periods in, more than one country, there may be uncertainty about whether such connection or time spent in different jurisdictions does not make you tax resident in more than one place. The question of tax residence is very important for internationally active people, because getting it wrong can be expensive and time-consuming to resolve.
Other than the number of days spent in a country – which is perhaps the most important factor – a wide range of personal, business, property, economic and social connections must also be considered to determine ‘tax residence’.
In many countries, the laws and regulations are ambiguous, except for minimum thresholds (i.e. below a certain number of days of presence in the country – with anywhere between 10 and 90 days a year, you are generally safe and would normally not be deemed resident for tax purposes, depending on the country), and there is generally no clear guidance on the relevant weight of each factor.
Factors that can play a role include:
• Where your spouse lives (if you are married)
• Where your children live (if you have children)
• Where you have accommodation available for your use (i.e. where you own or rent homes)
• Whether or not you were tax resident in previous years
• Whether or not you carry out full-time work somewhere outside the country (i.e. you have a full-time job and workplace outside the country)
• Whether you are doing any work in the country (even if just a few days per year)
• Whether you spend more days in the country in any tax year than in any other single country
• What social ties you have in the country, memberships in clubs and societies etc
By choosing a country with a mild tax climate for a main residence, a taxpayer can considerably reduce his burden legally and effectively without the need for complex tax planning. Belgium, Croatia, Hong Kong, Malta, Monaco, Singapore, St. Kitts and Nevis, Switzerland, and the UK, to name a few, are attractive destinations in this respect. So a change of residence may well be worthwhile not only as a lifestyle choice but also from the standpoint of taxation.
A move will either have tax advantages and tax savings or it can create a greater tax burden, depending on the jurisdiction. It is therefore imperative to establish the tax implications prior to changing residence. Interesting scenarios could arise that one would not ordinarily be aware of. Most sensibly, one should consult a tax advisor who is versed in the tax laws of both countries.
A trend which we see with tax authorities around the world is that they check not only how long you are resident in a particular country, but also whether you may be spending more days in their country than in any other single country. In other words, even if you spread out your presence globally across several jurisdictions, and say you are spending your year in 6 different countries with 80 days, 70 days, 60 days, 75 days, 10 days and 65 days in each, then it could be that the tax authorities of the country you spend 80 days could still deem you tax resident (in practice of course only if you have some other connection there), even if you are well below the normal threshold for that country but simply because you spent even less time elsewhere.
Day counting
If you spend more than 183 days in any country, you are normally tax resident in that country, unless the presence there is of a strictly limited, temporary nature. If you spend no time at all in a country, you cannot be deemed tax resident.
Between zero and 183 days lies a wide range of possibilities, although normally there are some minimum thresholds of number of days below which you are ‘safe’.9
You also need to be aware of what constitutes a day spent in any particular country. Is it a full 24 hours? Is it just being present in any given day, even if just for half an hour in transit? Furthermore, the year in which the days are counted may correspond to a different period than the calendar year, depending on the country’s ‘tax year’.
Some countries rely on a territorial (or source) based tax system10 which has no impact on whether one is resident or non-resident as all income derived in that country is subject to tax, while income derived outside the country remains tax free.11 Most countries, however, have taxation on world-wide income.
Therefore (tax) residence status becomes highly relevant as most countries use residence as the key criterion for subjecting one to personal income taxes and other taxes such as capital gains or net wealth taxes. Normally, various tests are applied to determine one’s tax residence. In most countries this is determined by the number of days of physical presence in the country, in combination with other factors.
The tax authorities will also establish whether the individual has accommodation readily available and family and business interests in the country. For former countries of residence, it is important for the individual to prove that he has left permanently to establish residence in another country as this confirms bona fide residence in the new jurisdiction so that the former country will no longer tax the emigrant’s worldwide income. In some countries, this change of residence is confirmed by way of exit taxes.
The emigration of US citizens does not terminate their world-wide tax liability under Federal tax law, even if they are permanently resident in another jurisdiction. In such cases, the only way to legally relinquish US tax liability is to give up US citizenship and obtain an alternative citizenship.12
The discrepancies between the tax systems of different countries can also be used to one’s advantage in the course of changing residence. Indeed, an important element in cross-border planning is to coordinate the timing of the tax events and the taxpayer. For example, the tax treatment of income derived from activities performed before or after a person gives up his residence, and the different qualification of such income in different countries, may lead to tax savings through carefully chosen timing of a change of residence.
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