A natural person who is not ordinarily resident in the Republic will also be a resident if he was physically present in the Republic for a period or periods exceeding
· ninety-one days in aggregate during the current year of assessment, and
· ninety-one days in aggregate during each of the three years of assessment preceding the current year of assessment, and
· 549 days in aggregate during the three preceding years of assessment.
The person must be physically present in the Republic for more than ninety-one days in the current year of assessment.
The person must be physically present in the Republic for more than ninety-one days in each of the three previous years of assessment.
The person must be physically present in the Republic for more than 549 days in total during the three previous years of assessment.
The person must not be a person who was continuously absent from the Republic for a period of at least 330 days (see below in this regard).
The physical presence test deems a person to be a resident if he was present in the Republic for a total period of more than
· ninety-one days in the current, and
· each of the preceding three years of assessment, and
· a total period of more than 549 days during the preceding three years of assessment.
The ninety-one days and the 549 days of physical presence need not be continuous. It is important to note that the 549 days applies to the preceding three years of assessment and not to the current year of assessment. It will, therefore, be necessary to keep detailed records of physical presence in the Republic (see below under ‘Onus’ in this regard).
A day will include a part of a day for the purposes of the determination of the days of physical presence in the Republic. This means that the days of arrival in and departure from the Republic will count as days of being physically present in the Republic.
A person who is a resident in terms of the physical presence test will be deemed not to be a resident if he is physically outside the Republic for a continuous period of at least 330 full days immediately after the day on which he ceases to be physically present in the Republic. He will be deemed not to have been a resident from the day on which he ceased to be physically present in the Republic. (This concession does not apply to a person who is ordinarily resident in the Republic, for example, a person who is absent from his home in the Republic for, say, study purposes for a year.)
The period of 330 days must be continuous. Because this concession applies only to a person who has met the physical presence, he must have been physically present in the Republic for more than ninety-one days in the current year of assessment, it means that the period of 330 days will cover two years of assessment,
· the first, being the year of assessment in which the person was last considered to be a resident in terms of the physical presence test, and
· the second, being the following year of assessment. The concession applies from the commencement of the 330-day period, so that the qualifying person will be a resident for part of the first year of assessment and a non-resident for the remainder of the first year.
As it is only after the 330-day period has been fulfilled that the person will be deemed not to be a resident. It would seem that prior to this period coming to an end, any employer paying him remuneration would not be aware that he is going to be deemed not to be a resident and therefore it is likely that employees’ tax will be deducted from any remuneration he earns.
The ‘physical presence’ test does not apply to a person who is ordinarily resident in the Republic in the year of assessment. Therefore when a person emigrates from the Republic, because he would have been ordinarily resident in the Republic in the year of assessment prior to his emigration the ‘physical presence’ test cannot be applied in the year of assessment of emigration. The person will therefore
· be a resident of the Republic up to the time of his emigration, and
· not be a resident of the Republic from the day he emigrates.