Tax

Residence and domicile

How does an individual become taxable in your jurisdiction?

Tax residence is established purely on the basis of the number of days an individual spends in Guernsey in a tax (calendar) year. Generally, an individual who spends more than 91 days in Guernsey during the tax year will be treated as resident. This reduces to 35 days for those who have spent 365 days or more in Guernsey in the previous four years.

An individual who is resident but who spends 181 days or less in Guernsey and more than 91 days in another jurisdiction is treated as ‘resident only’ and is entitled to pay a reduced standard tax charge (see below).

Income

What, if any, taxes apply to an individual’s income?

Income tax is levied on the worldwide income of residents at a flat rate of 20 per cent, subject to personal reliefs and deductions. However, tax is capped at £130,000 on non-Guernsey source income, and £260,000 on worldwide income (other than Guernsey property income).

Individuals who are resident-only can elect to pay either a standard charge of £30,000, or 20 per cent of their Guernsey source income, if higher. No further income tax liability will be due.

An individual paying the tax cap or standard charge is able to file a simplified return that may mean that he or she is not obliged to declare all the details of all his or her income (although the Revenue Service retains the power to call for this).

Personal allowances and similar deductions are abated for individuals earning over £100,000 per annum.

Capital gains

What, if any, taxes apply to an individual’s capital gains?

There is no capital gains tax in Guernsey.

Lifetime gifts

What, if any, taxes apply if an individual makes lifetime gifts?

There is no gift tax in Guernsey.

Inheritance

What, if any, taxes apply to an individual’s transfers on death and to his or her estate following death?

There is no inheritance tax in Guernsey.

Real property

What, if any, taxes apply to an individual’s real property?

Document duty is charged on the acquisition of Guernsey real estate at rates of up to 5.5 per cent based on the value of the property acquired.

Non-cash assets

What, if any, taxes apply on the import or export, for personal use and enjoyment, of assets other than cash by an individual to your jurisdiction?

No taxes apply in this regard.

Other taxes

What, if any, other taxes may be particularly relevant to an individual?

Guernsey has no other taxes, such as value added tax or goods and services tax, that may be particularly relevant to an individual.

Trusts and other holding vehicles

What, if any, taxes apply to trusts or other asset-holding vehicles in your jurisdiction, and how are such taxes imposed?

The income of settlor interested trusts (with Guernsey resident settlors) is taxed on the settlor. Trustees of other trusts with Guernsey resident beneficiaries are subject to tax on the trust income. Other trusts are not subject to tax.

Distributions from trusts received by Guernsey residents are taxed in the hands of the beneficiary. However, credit is given for tax already paid by the trustees (or settlor).

Charities

How are charities taxed in your jurisdiction?

Guernsey registered charities are not subject to tax on income that is applied for charitable purposes.

Anti-avoidance and anti-abuse provisions

What anti-avoidance and anti-abuse tax provisions apply in the context of private client wealth management?

Guernsey has a wide general anti-avoidance rule that potentially disregards the effect of any transaction that reduces or defers liability to Guernsey income tax, regardless of intention. However, this provision is used sparingly. The Guernsey Revenue Service often publicly identifies situations where it would consider applying the provision, to discourage avoidance, rather than seek to apply the provision retrospectively.

Trusts and foundations

Trusts

Does your jurisdiction recognise trusts?

Yes, Guernsey is a leading jurisdiction for the establishment and management of trusts. The current key legislation in relation to trusts is the Trusts (Guernsey) Law 2007, as amended (the Trusts Law). The Trusts Law is supported by an extensive body of local case law.

The most common form of trust established in Guernsey is the discretionary trust. However, the Trusts Law also permits the existence of:

  • fixed interest trusts;
  • purpose trusts (both charitable and non-charitable); and
  • settlor reserved power trusts.

It is common for Guernsey law trusts to have certain features. These features may include:

  • an unlimited trust period: the Trusts Law allows a Guernsey law trust to exist for an unlimited period, although they can also exist for a limited period of time;
  • protectors: settlors may wish to provide certain controls to third parties. These controls are normally achieved by the appointment of a ‘protector’ who may have a positive power reserved to them or a power of veto over the exercise of a trustee’s power; and
  • revocability: Guernsey trusts can be made revocable or irrevocable. Revocable trusts can be terminated by the settlor. Irrevocable trusts cannot be revoked and are therefore the preferred option when considering asset protection.

Typically, trust structures are deployed in a number of situations to assist with wealth planning matters for high net worth individuals. Likely reasons for the establishment of trusts include:

  • asset protection;
  • avoidance of probate formalities;
  • avoidance of forced heirship rules;
  • control of spending;
  • maintaining privacy in respect of personal financial affairs; and
  • the prevention of division of family assets.

Guernsey recognises trusts regardless of whether they are governed by another jurisdiction’s law or whether they are created for residents or non-residents

Private foundations

Does your jurisdiction recognise private foundations?

Yes, the Foundations (Guernsey) Law 2012 (the Foundations Law) came into effect on 8 January 2013 and provides for the establishment of Guernsey foundations from the same date. The key features of a Guernsey foundation are the following:

  • A foundation is registered (similar to a company) and is issued with a unique registration number by the Guernsey Registrar of Foundations. Every foundation must have a registered office.
  • A foundation has separate legal personality. The assets of a foundation belong to the foundation (not its founder or council) and it may have all of the functions of a legal person.
  • A foundation is constituted by two core documents, defined in the Foundations Law as the Charter and Rules:
  • The Charter must contain the name and purpose of the foundation, a description of its initial endowment, the duration of the foundation, and a statutory declaration from the founder, or his or her residential agent, that he or she wishes the councillors to comply with the terms of the Charter.
  • The Rules must set out the operative provisions of the foundation. These provisions include the process of appointing and retiring councillors and the way in which foundation assets are to be appointed to beneficiaries, etc.
  • A foundation must have a purpose. The main purpose of a foundation cannot be to carry out a commercial activity. However, a foundation can be established for a wide variety of purposes including the administration of assets for its beneficiaries, as a charitable vehicle, and to act as trustee of a collection of related trusts in the form of a private trust foundation.
  • The name of a foundation must include ‘Foundation’ or the abbreviated ‘Fdn’.

Key persons in relation to a Guernsey foundation are:

  • the founder: determines the purpose of the foundation and endows the initial capital;
  • the guardian: required if the foundation has disenfranchised beneficiaries or if the foundation has been established for a purpose only;
  • the beneficiaries: those who are entitled to benefit from the assets of the foundation, of which there are two types:
    • enfranchised: entitled to information on the foundation and entitled to apply to the Royal Court to change the purposes of the foundation or revoke the foundation; and
    • disenfranchised: not entitled to any information on the foundation; and
  • the councillors: at least two councillors comprise the council that manages the foundation. The founder or any other person may be appointed as a councillor, but the guardian may not be.

Same-sex marriages and civil unions

Same-sex relationships

Does your jurisdiction have any form of legally recognised same-sex relationship?

Guernsey permits same-sex civil partnerships and marriages. Pursuant to the Same-Sex Marriage (Guernsey) Law 2016, individuals of the same sex can marry in Guernsey. Same-sex marriages from foreign jurisdictions will also be recognised.

In regard to tax, individuals in same-sex relationships are treated in exactly the same way as mixed-sex couples. Guernsey recognises same-sex marriage, so no special arrangements or rights are given for same-sex cohabiting couples beyond those afforded to mixed-sex couples. Because Guernsey still has joint taxation for married couples (unless the couple elects for separate taxation), the requirement to complete a tax return falls on the husband. For same-sex married couples (including couples in a civil partnership), the ‘husband’ role falls upon the elder partner.

In regard to succession, there is freedom of testamentary disposition in Guernsey. Therefore, civil partners and same-sex partners can be included within wills made under the terms of the Inheritance (Guernsey) Law 2011 (the Inheritance Law). In the case of intestacy relating to estates where the Inheritance Law applies, same-sex partners will inherit in the same way as spouses would. They also have the right to make a claim for financial provision where there is a will made under the Inheritance Law, or upon intestacy.

Heterosexual civil unions

Does your jurisdiction recognise any form of legal relationship for heterosexual couples other than marriage?

At present, Guernsey only recognises religious or civil marriage as a legal relationship for heterosexual couples.

Succession

Estate constitution

What property constitutes an individual’s estate for succession purposes?

Guernsey, similarly to England and Wales, does not have matrimonial property regimes as such. This is owing to the fact that there is no community of property and thus, in principle, marriage does not have a proprietary effect. Nonetheless, upon divorce, the courts are given a wide discretion to make a range of orders, such as financial provision orders and property adjustment orders.

Disposition

To what extent do individuals have freedom of disposition over their estate during their lifetime?

Guernsey places no restriction on lifetime giving. However, lifetime dispositions made with an intention to defeat a claim for financial provision under the Inheritance Law, and made within six years prior to the date of the death, may be set aside.

To what extent do individuals have freedom of disposition over their estate on death?

If a person dies domiciled in Guernsey, any wills made prior to the introduction of the 2011 Law (unless specifically stated to invoke the terms of the 2011 Law) will be governed by Guernsey’s customary rules of forced heirship, which differ in relation to real and personal estate. Where a person has died testate, in respect of their personal estate:

  • if there are surviving spouse and surviving issue, then any solely owned personal estate will be divided so that the spouse receives a statutory entitlement of one-third, the issue share one-third between them, and the remaining third is freely disposable;
  • if there is only a surviving spouse or surviving issue, then the surviving spouse or issue (between them) will receive one-half of the movable estate and the remaining one-half is freely disposable; and
  • if there is no spouse or issue, then the whole of the personal estate is freely disposable.

In respect of real estate, regardless of whether the deceased left a will:

  • if there is a surviving spouse, he or she is entitled to a right of enjoyment over one-half of the deceased’s solely-owned real property; and
  • if there are surviving children, then real property can only be left to any one or more of a surviving spouse, children, grandchildren or step-grandchildren.
Intestacy

If an individual dies in your jurisdiction without leaving valid instructions for the disposition of the estate, to whom does the estate pass and in what shares?

The Inheritance Law sets out the different provisions that apply to intestate succession according to whether the property is immovable or movable. If there is no one to inherit, both immovable property and movable property pass to the Crown bona vacantia.

Adopted and illegitimate children

In relation to the disposition of an individual’s estate, are adopted or illegitimate children treated the same as natural legitimate children and, if not, how may they inherit?

In relation to the disposition of an individual’s estate, adopted and illegitimate children are treated the same as natural and legitimate children under the Inheritance Law.

Distribution

What law governs the distribution of an individual’s estate and does this depend on the type of property within it?

Movable property is governed by lex domicilii and immovable property is governed by lex situs.

Formalities

What formalities are required for an individual to make a valid will in your jurisdiction?

To be valid, a will usually must be typed or handwritten. A written will must be signed by the person making it in the presence of two witnesses. An exception to this rule is a will disposing of personal estate, which must be entirely handwritten, signed and dated by the person making it. There are rules governing who can be a witness and the relationship between a witness and beneficiaries of the will. These rules seek to ensure the independence of witnesses.

Foreign wills

Are foreign wills recognised in your jurisdiction and how is this achieved?

The Execution of Wills (Bailiwick of Guernsey) Law 1994 governs the validity of wills. The Law states that Guernsey will recognise a will if its execution conforms to the internal law in force in:

  • the territory where it was executed;
  • the territory where the deceased was domiciled or had habitual residence at the time of its execution or of the deceased’s death;
  • a state of which the deceased was a national at the time of its execution or of the deceased’s death; or
  • the territory where the property is situated if the will disposes of real property.
Administration

Who has the right to administer an estate?

The person with the right to administer an estate depends on the type of property in question. Immovable property that is situated in Guernsey does not require a conveyance or otherwise. In such a case, property vests automatically in the deceased’s heirs. Movable property that is situated in Guernsey will vest in the deceased’s personal representatives.

If there is no will, the surviving spouse will be the preferred administrator.

If there is a will but no executor, one of the beneficiaries will be the preferred administrator.

How does title to a deceased’s assets pass to the heirs and successors? What are the rules for administration of the estate?

Immovable property vests automatically in the deceased’s heirs. With regard to movable property, how a deceased’s assets pass to his or her heirs and successors is dependent upon the type of asset and, as such, the legal mechanism for transferring each type of asset will need to be followed.

Challenge

Is there a procedure for disappointed heirs and/or beneficiaries to make a claim against an estate?

Yes. If a will was made on or after 2 April 2012, a claim can be made against the estate by:

  • disappointed spouses;
  • civil partners;
  • a former spouse or civil partner who has not remarried or formed a new civil partnership;
  • any person living as if he or she was a spouse or civil partner for at least two years before the death;
  • a child of the deceased;
  • a person treated by the deceased as a child of the family; and
  • any person who was being maintained by the deceased.

The person making a claim against the estate must be able to establish that reasonable financial provision was not made for him or her within the will. The claim must be filed within six months of the date of death.

Capacity and power of attorney

Minors

What are the rules for holding and managing the property of a minor in your jurisdiction?

A tuteur (a type of guardian) will hold movable and immovable property on behalf of a minor. Guardianship of a minor will terminate when he or she turns 18 or when he or she marries if before the age of 18.

Age of majority

At what age does an individual attain legal capacity for the purposes of holding and managing property in your jurisdiction?

18 years of age.

Loss of capacity

If someone loses capacity to manage their affairs in your jurisdiction, what is the procedure for managing them on their behalf?

In accordance with the Curatelle Rules 1989, a tuteur may be appointed if an individual loses capacity to manage his or her affairs. For this to take place, medical evidence must be provided and the family council must approve the appointment. Alternatively, the Mental Health (Bailiwick of Guernsey) Law 2010 can be used for one-off decisions about an individual who lacks capacity.

Immigration

Visitors’ visas

Do foreign nationals require a visa to visit your jurisdiction?

As of November 2018, generally, an individual who is not a British citizen, a national of a member state of the European Union or European Economic Area, the holder of an EEA family permit or a Swiss national needs permission to enter Jersey or Guernsey. For these purposes, ‘British citizen’ includes other Commonwealth citizens who have the right of abode in the UK.

How long can a foreign national spend in your jurisdiction on a visitors’ visa?

A maximum of six months.

High net worth individuals

Is there a visa programme targeted specifically at high net worth individuals?

The Guernsey housing market is divided into open market and local market sections. The open market amounts to approximately 10 per cent of the total housing in Guernsey. Occupying an open market property allows the occupier to work in Guernsey, subject to any additional immigration requirements.

Guernsey offers the following programmes as a way of moving to Guernsey:

  • Investor Visa programme: the applicant must have £1 million available and under his or her control, with a requirement to invest £750,000 for the benefit of the Bailiwick of Guernsey; and
  • Entrepreneur Visa programme: the applicant is required to have £200,000 of disposable funds and the means to support him or herself pending his or her new business being able to support him or her. The individual must have adequate funds of his or her own to establish a business, which can be shown to be in the interest of Guernsey, and he or she must be actively involved full-time in that business of which they have control.

These programmes are available to an individual who wishes to live in Guernsey’s open market and can do so, either by investing in the island, or by buying or establishing a business in the island.

If so, does this programme entitle individuals to bring their family members with them? Give details.

A person’s children under 18 can be included on the application, as can his or her spouse.

Does such a programme give an individual a right to reside permanently or indefinitely in your jurisdiction and, if so, how?

Investor and entrepreneur visas are initially granted for two years and are subject to an extension for another three years, provided that certain requirements are met. Following five years’ residency, investors and entrepreneurs can apply for indefinite leave to remain in Guernsey either in their investor capacity or in running their business, and by complying with all of the relevant requirements.

Applicants from 18 to 65 years of age must also pass the citizenship test to demonstrate that they have sufficient knowledge of English and of life in the UK and Guernsey. Children under 18 may be included in the application but must apply individually.

Guernsey citizenship may also be applied for once a person has been living in Guernsey as a permanent resident for one year or more; however, he or she must have spent at least six years in Guernsey after first entry as an entrepreneur or investor.

Guernsey permits dual citizenship; thus, a person will not need to renounce his or her current nationality to apply for Guernsey citizenship.

Does such a programme enable an individual to obtain citizenship or nationality in your jurisdiction and, if so, how?

It is not possible to obtain separate nationality in Guernsey. The UK government is responsible for the laws covering British citizenship through the British Nationality Act 1981, which applies to Guernsey. An individual can apply for naturalisation if he or she has lived in the United Kingdom or in Jersey or Guernsey for five years or more, or if he or she is married to a British citizen and has lived in the UK or Jersey or Guernsey for three years or more. It is also necessary to pass the UK’s citizenship test and meet the English language requirement.