not sure i am asking this in the right place. recently moved to France. have got downloaded my P 85 form. trying to fill in question 17 which asks 'will you (or your spouse,civil partner or someone you are living withas a spouse or partner) have a home in the UK while you are abroad?' my wife and I have legally separated with a legal deed which gives her total ownership of the house in UK. i am not sure what to answer yes or no? please help

She is not your spouse any more and you no longer own the house so you can move to on question 18


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Hi and welcome to the French forum. I imagine this question is to determine whether you might still be considered UK resident in the future and equates to whether you have available accommodation in the UK. Assuming you don't want to be considered UK resident and you plan to make France your home then I would put no. If you want to maintain UK residency I would put yes. I know that sounds a bit daft but until you're divorced the issue is not fully resolved one way or the other.

There are other tests for UK residency, principally the length and timing of your visits so even if you answer no then that is not necessarily enough on its own for you to be considered non UK resident.

Wouldn't it be a bit daft filling in a P85 if you wanted to remain a UK resident?

True. A P85 is notification to HMRC that you have left the country. Or will be working abroad for more than one tax year.

You may think so but HMRC does not make this assumption. The P85 really is a way to tell HMRC that you are leaving the UK, maybe to work, maybe not and maybe you will come back but maybe not - the only thing HMRC is clear about is that the P85 is not appropriate for a holiday or business trip abroad.

Looked at simply, it is a way for you to tell HMRC that your new address is outside the UK (and that is where they will write in the future and also send any tax refunds etc) Depending on circumstances, this may or may not be the start of your non-UK tax residence. (As I mentioned earlier there are many factors which are used now to determine UK tax residence)

Just one point I should make to the OP (though I don't know his circumstances) - you should not complete a P85 if you have already completed or are required to complete a self-assessment tax return for the tax year in which you leave/left the UK.

If you dig around on the truly appalling HMRC website you may if you're lucky find your way to various definitions of 'a home in the UK'. Basically, if I remember correctly, it's a place that is always available for you to live in (so it can be a hotel room that you rent by the year, but if you own a house and let it out it is not your home) and in which you do spend at least X nights during the year. However it refuses to commit itself to a hard and fast rule and says that cases can be assessed individually. So as IVV says, interpret it in whatever way suits you best. If you are legally separated I suppose the correct answer is No because why does your ex have any obligation to let you live there. But whichever you put, nobody is going to query it, they will process the form based on whatever you tell them.

It seems it's more the availability of the accommodation that is important which even leaves staying in a hotel open to some interpretation. Extract from the Cambridge Tax Practice:-

Accommodation Tie :

You have a UK accommodation tie if :

You have ‘available accommodation’ for a continuous period of at least 91 days in the tax year, ignoring any gaps of fewer than 16 days.

Available accommodation is widely defined and will include a home in the UK, holiday home, temporary retreat or similar’ and could include the use of a hotel if the same hotel is always used.

They also have a fascinating story about a couple who retired to Portugal but still ended paying UK tax:-

New Residence Rules

Not if you live betwixt and between and are dual tax resident, and the French fisc are claiming you and saying you should be declaring worldwide income here and you want to escape their clutches. In those circumstances you would rely on the P85 to get the UK to claim you back.

In cases like this, assuming that people have been paying tax in the country they claim to have believed they lived in, what's supposed to happen? Does the HMRC ruling automatically mean that Portugal or wherever have to refund the tax? In which case one would expect it not to make too much difference, obviously you'd win or lose a bit but it's not like the difference between paying heaps of tax and paying none. Or is the couple supposed to pay HMRC and then start their own battle with Portugal to get their money back? Scarey stuff. Although I don't feel particularly sorry for this couple because they sound dodgy to me

I've idea ET but I can't imagine it would be very easy to get a refund. I doubt they paid any tax in Portugal anyway.

Thanks so much for your helpful comments, the property in Uk is only worth £310000 as is the property in France, my savings are about 400k so I don't think I will be subject to the rich tax as the house in France has a donation entre vifs to my two sons so actually I have only 20% of ownership in the property, my understanding is that I will be better off being taxed in France, particularly as I am a retired doctor and I understand that my NHS pension is covered by the French micro-BNC(Bénéfices non commerrciaux)tax rules which I gather state that relevant annual income can be reduced by 34%before any tax calculation is applied.
So I suppose the answer to the question 17 is No if I am reading the advice correctly

I am not sure how she would be considered by Hmrc as we are not divorced just legally separated with a legal deed of separation.

This doesn't sound correct to me skipsych. I think the micro-BNC regime only applies if you work or have worked in France. I would expect your pension to be taxed in the same way as any other UK government pension which is that the UK will tax it and no further tax on it should be due in France. Other members may have more direct experience of this situation though.

The house is no longer your place/abode of residence personally I would tick the no box as ET said it's all in the interpretation and the legal justification of it.

The question is

Imho you have separated and have a deed to that effect, that house is no longer your "accommodation" and by ticking NO it tells you to move on to section 4 and I assume you can tick NO to the first question in section 4 as well

Then move on to section 5


But I'm only suggesting how I would fill it in, you could consult the CAB or Hmrc