On 19 August 2016, the Government released a further consultation paper on the taxation of non-UK domiciliaries. This contains revised proposals for the treatment of non-resident trusts and companies settled or held by non-doms who will be deemed domiciled under the new rules. Supposedly, the paper “sets out most of the intended protections for non-resident trusts which were originally announced at Summer Budget 2015”. However, it is clear that the Government has had something of a change of heart on this topic.
A significant component of the proposed reforms to the taxation of non-UK domiciliaries, which are scheduled to become law in April 2017, will be changes to the tax legislation regarding non-resident trusts and other non-resident entities. The last Government paper on these reforms was back in February 2016. That document reassured readers that:
“When the reforms were announced in the summer 2015 Budget, the government made it clear that those long-term resident non-doms who have set up an offshore trust before they become deemed-domiciled having been resident for 15 of the past 20 years will not be taxed on trust income and gains that are retained in the trust. These protections will be legislated in Finance Bill 2017.”
However, the last six months have been a long time in British politics, and the current Government clearly has a different view about how far these protections should go. The latest proposals for non-resident trusts have a distinctly sharper flavour than those which have been aired previously. It is perhaps worth outlining the original proposals, to bring out the contrasts with the regime that is now being discussed.
Before we do so, it should be emphasised that the proposed changes will have no application to non-resident trusts with settlors and beneficiaries who are non-UK domiciled and are not deemed domiciled in the UK. The benign treatment of such trusts will be unaffected.
Even for settlors/beneficiaries who are deemed domiciled under the new rules, non-resident trusts may still represent a highly tax-efficient way for assets to be held. The issue, though, is that the protections for trusts will be subject to tougher conditions than previously envisaged, which will require such trusts to be managed with care when the new rules come into force.
One further preliminary point: in this note we will focus on the treatment of non-resident trusts with settlors/beneficiaries who are deemed domiciled by reason of long-term residence in the UK, under the proposed “15 out of 20 years” rule. By way of reminder, this is the new rule under which a non-UK domiciliary will become deemed domiciled in the UK for all tax purposes, typically at the beginning of the 16th tax year of residence in the UK, or on 6 April 2017 if more than 15 tax years of UK residence have already been clocked up.
For brevity, we will not cover the treatment of trusts settled by the other proposed class of deemed domiciliaries, i.e. those with a UK domicile of origin, a place of birth in the UK and current UK tax residence. The Government’s stance in relation to such trusts has been severe from the outset, and no concessions are made on this topic in the latest consultation paper.
THE PREVIOUS PROPOSALS
Up to now, the information that we have had about the proposed future treatment of non-resident trusts with deemed domiciled settlors/beneficiaries has come from the Government consultation paper that was published in September 2015. The coverage of trusts in that paper was quite brief, and the little that it did say was perhaps suggestive that, at that point, the Government had not given an enormous amount of thought to this important and complex topic. The broad thrust of what it said was that:
- Trusts holding non-UK assets which had been established by non-UK domiciliaries before the onset of deemed domicile under the “15 out of 20 years” rule would continue to be protected from inheritance tax (IHT), on the basis that their assets would enjoy “excluded property” status. Such trusts would not be subject to IHT charges at ten-yearly intervals or on the death of the settlor, as can be the case with trusts established by UK domiciliaries. In other words, there would generally be no changes to the IHT regime for trusts.
(The one important exception to this was trusts settled by non-UK domiciliaries which own UK residential property through non-UK holding companies, which would be affected by a proposed “transparency” rule. For the latest on this topic, please see our briefing note Reform of the taxation of non-doms: inheritance tax on UK residential property.)
- UK resident settlors of non-resident trusts who have become deemed domiciled under the “15 out of 20 years” rule would not be taxable on the trust’s income and gains on an arising basis, i.e. there would be no “tax transparency” for income tax and CGT purposes. This was subject to no assets having been added to the trust after the settlor’s acquisition of deemed domiciled status.
- However, such settlors would be taxed on any benefits received from the trust. There would be no difference in the treatment of benefits received within or outside the UK. This was to be expected, because the differential treatment of UK and non-UK benefits received by non-doms depends on them using the remittance basis, and non-doms who become deemed domiciled under the “15 out of 20 years” rule will no longer be permitted to use the remittance basis.
- The Government floated the possibility of tax being charged on benefits on a “flat rate” basis, purely by reference to the value of the benefits received, without account being taken of the value of income and gains realised by the trust itself.
- There was also a vague indication that tax would be charged on a deemed domiciled settlor on this “flat rate” basis not only if he personally received a benefit from the trust, but also if a benefit was received by a connected person.
So, in general terms, a non-resident trust established by a non-UK domiciliary before the onset of deemed domicile would be a UK tax-free zone, provided that no benefits were received. If benefits were received, tax would in many cases be charged on the settlor, but the trust would not become “tax transparent”.
In many respects these original proposals were fair, and indeed rather generous, to the UK’s non-doms. The one issue that many professionals had with the proposals was the suggestion that benefits should be taxed without reference to the trust’s income and gains. It was widely noted that although this was potentially a sensible approach in many cases, it could operate very unfairly in the case of “dry” trusts and trusts whose income and gains are subject to foreign taxation.
THE CURRENT PROPOSALS
The proposals that the Government has now published are far more developed. Where trust income and gains are concerned, the proposals are – at least at first sight – some distance away from what was originally announced.
The Government has wisely abandoned the “flat rate” tax idea. The protections for trusts established before the onset of deemed domicile are still there, but they are much more conditional, and the conditions mean that it will be more difficult, in practice, to keep the income and gains of non-resident trusts and other entities outside the UK tax net.
Perhaps inevitably, given the complexity of the law on the taxation of non-resident structures and the scale of the overhaul which this legislation will need in light of the new deemed domicile rules, many aspects of the new regime and how the various new rules will interact are very unclear. This will probably remain the case until draft legislation has been published.
TAINTING BY ADDITION
It appears that the income tax and CGT protections for trusts established before the onset of deemed domicile will be subject to an overriding condition that no assets have been added to the trust by an individual who has become deemed domiciled under the new “15 out of 20 years” rule. This was of course a feature of the original proposals too.
Any addition of assets by a deemed domiciled individual will “taint” the trust, depriving it permanently of the tax protections that are discussed below. The broad effect of such an addition will be to make the trust “tax transparent” vis-à-vis its settlor, with respect to the trust’s income and gains, in any tax years in which the settlor is UK resident.
Clearly, it will be critically important for settlors to avoid additions to trusts once they have become deemed domiciled. It may, depending on the precise wording of the legislation, be desirable for any transactions with the trustees to incorporate price adjustment provisions to prevent an involuntary addition of value to the trust by a deemed domiciled settlor.
A question that has been on the lips of advisers since the publication of the September 2015 consultation paper has been whether an addition of assets before 6 April 2017, by an individual who is already deemed domiciled for IHT purposes under the existing “17 out of 20 years” test, will “taint” the trust for the purposes of the tax treatment of its income and gains from 6 April 2017 onwards. The consultation paper is usefully explicit about this. It states that:
“where the settlement was created before 6 April 2017, only additions made on or after that date can taint the settlement because that is the earliest date on which the settlor can become a long-term deemed dom.”
In some cases, this point may create planning opportunities for individuals who are already deemed domiciled for IHT, and who have missed the opportunity to put assets into a trust. There may be scope for them to give assets qualifying for business property relief to a non-resident trust, or otherwise to sell assets to such a trust in exchange for a debt, so as to fund the trust without triggering an IHT entry charge.
TREATMENT OF TRUST GAINS
The consultation paper indicates that a further form of “tainting” will apply in relation to trust gains. To understand this, it helps to have some understanding of the current tax rules regarding gains of non-resident trusts. There are two provisions that can apply, and they cannot both apply in the same tax year:
- S.86 TCGA 1992. This can cause gains of a non-resident trust to be imputed to its settlor, so that he is taxable on them, resulting in the trust being “tax transparent” in relation to him. Under current law, the section only applies if there is a living settlor who is both UK resident and UK domiciled. In addition, it must be the case that the settlor, his spouse or any other member of a wide class of connected persons has the ability to benefit from the trust. Because this class is very wide, it is unusual for a non-resident trust with a living, UK resident and UK domiciled settlor not to be caught by s.86.
- S.87 TCGA 1992. If a non-resident trust is not caught by s.86, for example because the settlor is non-UK domiciled, it will be within the scope of s.87. S.87 cannot cause a trust to be “tax transparent” where gains are concerned, but it can cause gains that have been realised by the trust to be “matched” to distributions or other benefits received by the trust’s beneficiaries, including its settlor. If a UK resident beneficiary receives a benefit to which trust gains are “matched”, then in principle he is subject to tax on those gains.
Under the proposed new regime, a trust will not be drawn within the scope of s.86 merely because its settlor has become deemed domiciled. However, it will be brought within s.86 if it is “tainted” by an addition of assets by the deemed domiciled settlor (see above) or if “any actual benefits” are received from the trust by the settlor, spouse or minor child.
It appears that this second form of “tainting” will apply regardless of the value of the benefits received; the paper does not mention any de minimis threshold. Frustratingly, the paper does not explain what it means by “actual benefits”. It would seem most logical for the legislation to operate by reference to the existing concept of a “capital payment”. Under the existing law, a “capital payment” is a benefit from a trust that is not an income payment and, importantly, is not taxable in the recipient’s hands as income.
If the second “tainting” condition does indeed turn on whether a “capital payment” has been received, as distinct from a benefit in the widest sense, this may reduce the scope of the condition significantly. The reason is that, as explained below, it is possible that a capital distribution to the settlor will often be treated as income in his hands, and if so, it will not be a “capital payment”. However, this critically important detail is absent from the consultation paper.
An obvious question here is whether any “tainting” of the trust due to the receipt of benefits will apply merely in the tax year in which any such benefit is received, or whether the trust will shift permanently into the s.86 “tax transparency” regime. Again, this critically important issue is not clearly answered.
It seems possible that the Government envisages the impact on the trust’s CGT treatment being permanent. However, that would be draconian, and appears inconsistent with the approach which the Government has proposed regarding income distributions and benefits to which foreign income of the trust is “matched” (discussed below).
All this suggests that s.87 may have fairly limited scope where deemed domiciled beneficiaries are concerned. Because an “actual benefit” to a deemed domiciled settlor or to his spouse or minor children will bring the trust within s.86 in the relevant tax year (unless, possibly, it is treated as income in the settlor’s hands), and apparently also in all future tax years in which the settlor is UK resident, it seems that s.87 will generally only apply:
- If a “capital payment” is received from a trust whose settlor is non-UK resident, or if UK resident then neither actually UK domiciled nor deemed domiciled; or
- If a “capital payment” is received from a trust whose settlor is UK resident and deemed domiciled, which has not been “tainted” by any previous action, and the recipient of the “capital payment” is not the deemed domiciled settlor, his spouse or a minor child. (Receipt of a “capital payment” by one of these individuals would push the trust into the s.86 regime, removing any scope for s.87 to apply.)
Where s.87 does apply, and the “capital payment” is received outside the UK by a non-dom, it may be protected from CGT if the recipient is a remittance basis user and the benefit has not been remitted to the UK. But clearly that will not apply in the case of a deemed domiciled beneficiary.
TREATMENT OF TRUST INCOME
Things get even more complicated, and less clear, where trust income is concerned. The paper indicates that:
- If a trust has a UK resident settlor, then in all cases he will be taxable on any UK source income of the trust if he or his spouse can benefit from the trust. That reflects the current law, contained in the so-called settlements code (s.619 ff ITA 2007).
- If the settlor is UK resident, non-UK domiciled but deemed domiciled, foreign source income of the trust will not necessarily be imputed to the settlor for income tax purposes if the trust has not been “tainted”. However, foreign source trust income will be imputed to the deemed domiciled settlor if the trust has been “tainted” by an addition of assets (see above). In addition, there may be a tax charge for the deemed domiciled settlor, by reference to foreign source income of the trust, if a distribution or benefit has been received by the deemed domiciled settlor, his spouse or a minor child.
The paper suggests that the conditions for taxability of the deemed domiciled settlor on foreign income of the trust will be rather different from the “tainting” conditions that will apply in relation to s.86 TCGA 1992. As explained above, a trust will be pushed into the s.86 regime, quite possibly on a permanent basis, if a benefit is received by the deemed domiciled settlor, his spouse or a minor child (although, as we have suggested, possibly only if that benefit qualifies as a “capital payment”).
At first sight, the conditions for taxability of the settlor on foreign income of the trust seem somewhat wider, as the paper refers to the settlor being taxable if he, his spouse or an “other relevant person” receives a distribution. It is entirely unclear who would be included in the class of “other relevant persons” – i.e. whether this goes further than minor children.
However, the wording of the consultation paper suggests that the protection from tax for the settlor on the trust’s foreign income will not be forfeited entirely and permanently if a distribution or benefit is received by a “relevant person”. Instead, it appears that he will be taxed on the value of the distribution or benefit, to the extent that it can be “matched” to foreign income of the trust in the tax year of the distribution or subsequent tax years.
If that is right, it may mean that a deemed domiciled settlor will typically be able to receive distributions from a protected trust, falling within the amount of foreign income received by the trust, without overly negative tax consequences. It may be that:
- If the distribution does not exceed the amount of foreign income received by the trust in the tax year, it will be subject to income tax for the deemed domiciled settlor, but will not cause foreign income of the trust in future tax years to be taxed on him; and
- Because the distribution will not fall within the definition of a “capital payment”, it will not have the draconian consequence of causing the trust to be brought within the scope of s.86 (discussed above).
However, to some extent this is speculation.
TREATMENT OF COMPANY INCOME
The position is a little clearer regarding income of a non-resident company to which a UK resident deemed domiciliary is a transferor with “power to enjoy”, for the purposes of the income tax transfer of assets code (s.720 ff ITA 2007). This includes:
- Any non-resident company funded by the deemed domiciliary, who holds the shares in the company; but also
- Any non-resident company held by a trust of which the deemed domiciliary is the settlor, and which has been funded by the trustees or by the deemed domiciliary personally.
Under current law, such income is typically imputed to the transferor under s.720. However, if the income is foreign and the transferor is a remittance basis user, the income is only taxable if remitted to the UK. There are certain exemptions from s.720, which can be difficult to utilise in practice.
The consultation paper says that foreign income of a non-resident trust subsidiary will be taken outside the scope of s.720 “if it pays out dividends to the trust. If it doesn’t, the income arising to the foreign company will still be taxed under section 720”. So, rather bizarrely, it appears that any relief from income tax for a UK resident deemed domiciled settlor, with respect to income of a non-resident trust subsidiary, will be conditional on the income being distributed up to trust level in the tax year in which it is received. Once at trust level, the question of whether such income is taxed will turn on:
- whether the trust has been “tainted” by an addition of assets, and
- whether “the settlor, their spouse or other relevant person” receives a distribution or other benefit which represents the income (see above).
The paper does not directly address the question of how foreign income of a non-resident company funded by the deemed domiciliary and owned by him personally will be taxed. But it must be inferred that such income will be imputed to the deemed domiciled shareholder, and will give rise to tax for him, unless one of the existing exemptions from s.720 is in point. The income may conceivably be taken outside the scope of s.720 if it is distributed out of the company, but in that case it will of course give rise to tax for the deemed domiciled shareholder as dividend income.
Firm conclusions about how these rules will work are impossible at this stage. However, some tentative conclusions can be drawn:
- Non-resident companies held by UK resident deemed domiciliaries will generally be “tax transparent” with respect to their income and gains. Individuals with interests in such companies, who currently rely on the remittance basis to protect themselves from tax on corporate income and gains, should consider transferring such interests to trusts before becoming deemed domiciled. If held by trusts, such companies will need to adopt a policy of distributing all their income, to avoid the deemed domiciled settlor being taxable on the income.
- The “tax transparency” of companies will, however, be subject to the existing exemptions that can disapply the transfer of assets code and the rule which causes non-resident close company gains to be apportioned to UK resident participators. Where gains are concerned, the “tax transparency” will also be subject to double taxation treaty relief, if the company is resident in a suitable jurisdiction.
- Non-resident trusts settled by non-UK domiciliaries will, in principle, continue to provide significant tax benefits even after their settlors have become deemed domiciled. However, where both income tax and CGT are concerned, such benefits will depend on the trust not having been “tainted” by an addition of assets by the settlor after the acquisition of deemed domicile under the “15 out of 20 years” rule. Deemed domiciled settlors will need to guard against such additions.
- Care will also need to be taken if there are distributions or other benefits to the deemed domiciled settlor, his spouse or minor children. Such benefits may have the draconian consequence of causing the trust to become “tax transparent” vis-à-vis the settlor, possibly on an indefinite basis, with respect to gains realised on disposals of its assets, or disposals of assets by a non-resident subsidiary of the trust.
- However, it is possible that this will only be the case if the benefit qualifies as a “capital payment”. If that is right, there will be scope for the settlor, his spouse or minor children to benefit from the trust without its tax status being wrecked on a permanent basis, provided that it is accepted that such benefits will trigger income tax for the settlor. If this is indeed how the regime will operate, care will need to be taken by deemed domiciled settlors to ensure that the value of benefits received by “relevant persons” does not exceed the foreign income of the trust that is available for “matching” against such benefits.
- Bearing in mind the penal long-term consequences of a trust being pushed into the s.86 regime due to the receipt of a benefit by the settlor, his spouse or a minor child (although, as discussed above, perhaps only if the benefit qualifies as a “capital payment”), there may in some situations be an argument in favour of splitting existing trusts up into multiple settlements. Obviously this would need to be done prior to the acquisition of deemed domiciled status by the settlor. If this is done, and a benefit is received from one of the trusts, causing it to become “tax transparent” vis-à-vis its settlor for CGT purposes, this unfortunate result would be confined to that particular trust.
- There will in many cases be a strong argument in favour of cash or assets being distributed out of a trust before a non-UK domiciled beneficiary of it becomes deemed domiciled, if it is anticipated that cash will or may be required from the trust to cover future living expenses. The argument will be particularly forceful where there is a likely requirement for cash for non-UK spending. The beneficiary will be able to use the remittance basis to protect a distribution of non-UK cash or assets from tax when it is received (albeit that there will be a substantial remittance basis charge), and there should not be any tax on the distribution in future tax years provided that nothing deriving from the distribution is remitted.
- The legislation will be extremely complicated, and if experiences of earlier non-dom tax reforms are anything to go by, there will be changes of policy and significant changes to the detail before these proposed rules become law. Individuals who are potentially affected by these reforms will need to stay in close contact with their advisers in the run-up to April 2017, and may need to act quickly as the implementation date approaches.