Employee resident, ordinarily resident or domiciled outside the United Kingdom: location of duties: "merely incidental" duties
Part 2 Chapter 5 ITEPA 2003
Summary of Section 39
If an office or employment is carried on substantially outside of the United Kingdom in a year, any duties performed in the United Kingdom which are “merely incidental” to the work done abroad are treated as duties performed outside the United Kingdom.
- This rule applies to all of the charging provisions in Part 2 Chapter 5: Section 22, see EIM40102
- Section 26, see EIM40301
- Section 27, see EIM40201.
The rule is not taken into account when considering whether a seafarer is eligible for the Seafarers’ Earnings Deduction in Part 5 Chapter 6 ITEPA 2003 (see EIM33000 and subsequent). Section 39(3) states that Section 39 does not affect any question as to where any duties are performed or whether a person is absent from the UK (see EIM33007) for the purposes of the seafarers’ deduction. Part 5 Chapter 6 has its own rules dealing with location of incidental duties (see EIM33031).
“Merely incidental” duties
To determine whether work done in the United Kingdom is “merely incidental”, you need to think about the nature of the employment; what are the main duties, tasks and responsibilities? Against that background consider those duties that are claimed to be “merely incidental”. If the work done in the United Kingdom is subordinate or ancillary to that done overseas, you may accept that it is “merely incidental”. If, on the other hand, the work done in the United Kingdom is of the same kind as that done overseas, or if not the same, of equal importance, it will not be “merely incidental”.
Case law: Robson v Dixon
The case of Robson v Dixon (48TC527) involved a pilot, resident and ordinarily resident in the United Kingdom, who was employed by a Dutch airline. He flew aircraft from Amsterdam to various parts of the world. There were relatively few take-offs and landings in the United Kingdom. He claimed that the small number of take-offs and landings meant that his duties in this country were “merely incidental” to those performed abroad. The Courts rejected his claim on the grounds that the test is one of quality, not quantity. The Judge commented that the core duties of a pilot include landing and taking off in aircraft. So when the aeroplane landed in the United Kingdom the pilot was performing substantive duties of his employment.
Quality not quantity of duties
The case of Robson v Dixon established that it is the quality not the quantity of duties performed in the United Kingdom that determines whether or not they are “merely incidental”. However, where the employee works in the United Kingdom for more than three months in a year, you should not accept that work can be “merely incidental”.
Director - duties never merely incidental
The general principle in relation to a company director is that the management of a company is vested collectively in the board of directors. Therefore when a director attends a meeting of the board, HMRC takes the view that he or she performs a fundamental duty which is not “merely incidental” to other duties.
Consequently a director who in substance performs his duties overseas, except for visits to the United Kingdom to attend a meeting (whether as part of a formal board meeting or otherwise) cannot, in the view of HMRC, be within the exception in s39. Attendance at board meetings is part and parcel of a director’s core duties and therefore if performed in the United Kingdom cannot be incidental to duties performed abroad. A director’s attendance at other meetings (e.g. finance, strategy, personnel) is also likely to represent a substantive duty, because the director would not attend these meetings unless participation was deemed necessary.
Statement of Practice A10: airline pilots
Despite the decision in Robson v Dixon a single take off and landing in the United Kingdom in any year is disregarded on de minimis grounds in considering whether any duties are performed in this country.
Dealing with cases
It is not possible to list “merely incidental” duties. Substantive and “merely incidental” duties are relative and specific to employments. It is important to obtain as much information about the employment and employee as possible. The following list of documents is not intended to be comprehensive:
- employment contract
- job description
- summary of main duties and responsibilities
- business diaries and travel details.
These may help but if at all possible arrange a meeting with the employee to obtain information first hand. Once you have a clear idea of the main duties you are in a position to take a view as to what are “merely incidental”.
In March 2012 HMRC published a paper - http://www.hmrc.gov.uk/menus/dual-contracts.pdf setting out its
- approach to enquiries into dual contract arrangements, particularly in relation to evidence and documents,
- interpretation of “merely incidental” duties.
Some practical examples are set out at example EIM40204.