Part 1 of 3
This is the Finance Act 2021 version of this article. It is relevant for candidates sitting the ATX-UK exam in the period 1 June 2022 to 31 March 2023. Candidates sitting ATX-UK after 31 March 2023 should refer to the Finance Act 2022 version of this article (to be published on the ACCA website in 2023).
This article has been written because the taxation of trusts and the transfers of assets to and from trustees is a complicated area of the UK tax system. Accordingly, there is a need to set out the rules that may be examined and those areas where knowledge is not required. However, trusts represent only a small part of the ATX-UK syllabus and the existence of this article should not be seen as an indication that the taxation of trusts is of particular importance to the ATX-UK exam.
The requirements of the ATX-UK syllabus in respect of trusts include:
- the ability to explain how income tax, capital gains tax, and inheritance tax apply to transactions involving trusts
- knowledge of the tax implications of creating a trust – now or in the future – including what will happen when trust property passes to the beneficiary
- the ability to distinguish between interest in possession trusts and discretionary trusts
- knowledge of the inheritance tax implications of a settlor dying after creating a trust
- the ability to explain how trusts can be used in tax and financial planning.
The only trusts which are examinable are 'relevant property' trusts. Accordingly, trusts with an immediate post-death interest are not examinable. Throughout this article, the term ‘trust’ refers to relevant property trusts only.
The following aspects of the taxation of trusts are excluded from the syllabus:
- the calculation of income tax, capital gains tax, and inheritance tax payable by the trustees of a trust
- knowledge of situations where property is transferred between trusts or where the terms or nature of the trust is altered.
This article only covers trusts created on or after 22 March 2006. Trusts created prior to this date are not examinable.
Why use a trust?
Trusts enable the benefits arising out of owning property/assets, for example, the receipt of rental income in respect of a commercial investment property, to be enjoyed by someone other than the legal owner of the property. The law of trusts recognises that there can be a beneficial owner of property, known as the ‘trust beneficiary’, who is not the same as the legal owner (whose name is on the title deeds to the property), known as the trustee.
This split of legal and beneficial ownership gives rise to various possibilities including:
- the benefits of owning property can be transferred to minors whilst leaving control over the assets, together with the responsibilities of managing and maintaining them, with the trustees
- the income generated by assets can be made available to one individual or group of individuals whilst the capital is preserved and protected for another individual or group
- provision can be made in a will for assets, or the income generated by them, to be directed towards those in financial need in the years following the death of the testator (the person who made the will)
- the creator of the trust can retain control over the assets.
In addition, a number of tax planning opportunities arise, including:
- assets may be transferred into trust such that they are removed from the settlor’s estate (the settlor is the person who establishes the trust)
- assets may be transferred into trust such that they will increase in value outside of both the settlor’s and the beneficiaries’ estates
- trustees of a discretionary trust can direct income towards beneficiaries who are non-taxpayers such that there will be a repayment of the income tax paid by the trust
- property can be transferred into trust by a settlor whilst they are alive or via their will. In addition, following an individual’s death, a trust can be created via a deed of variation.
Types of trust
A trust is created when a settlor transfers the legal ownership of property/assets to the trustees who hold the property/assets for the benefit of the beneficiaries. The property/assets within the trust is known as 'relevant property'.
Interest in possession trust
- Where a beneficiary is entitled under the trust deed to the income from the property or to use the property, the trust is an ‘interest in possession trust’ and the beneficiary is known as the ‘life tenant’. The person who receives the trust property on the death of the life tenant is known as the ‘remainderman’ and their interest is known as a ‘reversionary interest’.
- This form of trust may be used to provide the income generated by the trust assets to a person (the life tenant) for their lifetime with the assets then being transferred to the remaindermen on the death of the life tenant. The life tenant does not have access to the assets themselves, such that they are protected and will, eventually, be transferred to the remaindermen.
- Where the trustees have discretion as to the accumulation and distribution of trust income and assets such that a particular beneficiary only has the possibility (as opposed to a legal right) of receiving a benefit under the trust, the trust is known as a ‘discretionary trust’.
- This form of trust enables a settlor to make general provision for the future needs of the beneficiaries in a flexible manner. The trustees will decide how to meet the precise needs of the beneficiaries as and when they arise in the future.
Written by a member of the ATX-UK examining team
The comments in this article do not amount to advice on a particular matter and should not be taken as such. No reliance should be placed on the content of this article as the basis of any decision. The authors and ACCA expressly disclaim all liability to any person in respect of any indirect, incidental, consequential or other damages relating to the use of this article.