On December 5 2016 the government published long-awaited draft legislation for the reform of the taxation of non-UK domiciled individuals, together with its response to the results of a consultation on the proposed measures published in August 2016.
The draft legislation includes provisions to bring into the scope of inheritance tax UK residential property held by non-domiciliaries through offshore companies and other entities, together with provisions introducing new deemed domicile rules for long-term UK residents and individuals born in the United Kingdom with a UK domicile of origin.
This update outlines the proposed new measures and highlights changes that have been made to earlier proposals. It also presents planning options in each case for individuals who may be affected by the reforms, which the government has confirmed will be introduced with effect from April 2017.
Summary of new measures
The new measures may be summarised as follows:
Non-UK domiciled individuals will no longer be able to shelter
Non-UK domiciled individuals with a domicile of origin outside the United Kingdom will be deemed to be domiciled in the United Kingdom for all tax purposes – income tax, capital gains tax and inheritance tax – after they have been UK resident for 15 of the last 20 tax years; and
Individuals born in the
Inheritance tax on indirectly held
With effect from April 6 2017, shares in certain offshore companies and offshore partnerships will no longer qualify as 'excluded property' under relevant inheritance tax legislation, to the extent that their value is derived from
Diversely held vehicles holding
The provisions will extend to certain debt arrangements.
Inheritance tax will be imposed on the occasion of a chargeable event. Relevant chargeable events include, among others:
the death of an individual who owns the company shares,
the redistribution of the company share capital; or
the 10-year anniversary of a trust.
Detailed draft valuation provisions have not yet been published, but the intention is that where an estate owns shares in an offshore company which in turn owns
Further details of how this will work in more complex circumstances (eg, where ownership of a property is shared between a number of overseas companies) are still required.
In the August consultation, the government proposed that debts between 'connected parties' would be disregarded when calculating the value of the property for inheritance tax purposes. Following criticism of this proposal, it has reconsidered.
A debt (including a connected party debt) will be allowable against the value of an estate that holds a
There is no indication in either the response document or the draft legislation as to whether there will be any grandfathering for loans made pre-April 2017.
A new rule has been introduced, the intention of which – according to the response document – is that when a
However, the draft legislation appears to go further than this, potentially catching disposals of shares and interests in partnerships, repayments of relevant loans and disposals of a property on liquidation of the overlying company. There is a separate rule in respect of property held via trusts.
A targeted anti-avoidance provision has been included to prevent arrangements being put in place to secure a tax advantage by avoiding or mitigating the inheritance tax charge.
Liability and accountability
Liability and accountability will principally fall on executors, trustees and beneficiaries. A proposal made in the consultation to impose an additional liability on directors of a company that owns a
Under the new provisions, Her Majesty's Revenue and Customs' existing powers to impose a charge on
The government is continuing to consider other options for enforcing an outstanding inheritance tax charge.
The government has confirmed its decision not to offer transitional arrangements to mitigate the tax costs of those who might wish to unwind structures.
For many individuals, the costs of maintaining a holding structure with virtually no remaining tax advantages will mean that de-enveloping in order to hold the
The new rules regarding disposals of
Existing debt arrangements should be reviewed before the new rules come into force.
For an individual wishing to invest in
Non-UK domiciled individuals with a domicile of origin outside the
Such individuals will be able to lose their deemed domicile status again and 'reset the clock' for income tax and capital gains tax purposes once they have spent six consecutive tax years resident outside the United Kingdom. For inheritance tax purposes, the required period of non-residence is to be four tax years; but if the individual becomes a
The new rules will not affect an individual's domicile status under general law or the domicile status of any of his or her children, which will be determined according to the child's individual circumstances. However, years spent in the
Impact of changes on the remittance basis charge
From April 6 2017 the £90,000 annual charge to claim the remittance basis for individuals who have been resident in the
Individuals with 'mixed funds' in overseas bank accounts consisting of foreign capital, capital gains and income will be able to separate them into their constituent parts. This option will be available to all non-domiciled individuals not born in the
It will also be possible for non-domiciled individuals who become deemed domiciled in April 2017 and who dispose of a relevant asset on or after April 6 2017 to rebase such an asset to its market value as at April 5 2017. The protection will be limited to assets that comply with certain conditions regarding ownership and foreign situs. Where assets were purchased wholly or partly with foreign income or gains, the remittance basis will be available for the element of the disposal proceeds that relates to such income or gains.
The protection will be limited to those who had paid the remittance basis charge in any year before April 2017.
It will be possible for an individual to elect for rebasing not to apply to a disposal. Any such election will be irrevocable.
Protection for property in non-UK resident trusts
Property in non-UK resident trusts settled by non-domiciled individuals before they become deemed domiciled in the United Kingdom will be outside the inheritance tax net as excluded property, to the extent that it is non-UK situate property or is UK situate property (apart from residential property and certain loans) held by the trustees through a non-UK vehicle (eg, a company).
Taxation of income and gains in respect of non-resident trusts
The response document and accompanying draft legislation sets out rules for the protection of existing non-resident trusts and for the taxation of income and gains on the payment of benefits and capital payments from a trust, which differ significantly from earlier proposals.
The rules proposed in the August consultation appeared particularly harsh in the case of capital gains tax, where the trust protection was to fall away permanently if a relevant beneficiary received a benefit from the trust. In this situation, the
Following discussions with practitioners, and having considered responses to the consultation, the government has made changes to both the proposed capital gains tax and income tax provisions. The new rules are noteworthy because they will affect not only deemed domiciled settlors, but also non-UK domiciled settlors who have not yet acquired deemed domicile status.
Capital gains tax
Under the capital gains tax provisions, a UK resident settlor will be liable to tax according to his or her tax status on trust gains matched to a capital payment received from the trust, together with any payments made to close family members unless the close family member is taxable as a result of being a UK resident and either UK domiciled or deemed domiciled, or non-domiciled but having remitted the payment to the United Kingdom in that tax year.
A 'close family member' is defined as a spouse, civil partner, co-habitee or minor child. The definition does not include a minor grandchild.
There will be a right of reimbursement from the trustees or beneficiary where a settlor has been taxed in respect of a benefit paid to a close family member.
Trust gains matched to a capital payment made to a beneficiary who is not a close family member will be taxed according to the status of the beneficiary.
A new rule has been introduced at the same time for all non-resident trusts under which a capital payment made to a non-UK resident beneficiary (whether the settlor or otherwise) of a trust on or after April 6 2017, or one that is matched after that date, will no longer be matched against the pool of trust gains. This will prevent the so-called 'washing out' of trust gains, whereby they can be matched with a capital payment to a non-UK resident beneficiary. Under existing rules, having been washed out in one tax year, such trust gains would be unavailable for matching with a potentially taxable payment made to a
A similar set of rules is to be introduced for income tax, whereby a settlor will be taxed according to his or her tax status on foreign trust income only to the extent that he or she, or a close family member, receives a benefit from the trust and provided that the close family member is not liable to tax.
Details of the proposed rules will be published in the Finance Bill 2017, most likely in March 2017.
Transitional rules will govern the way in which pre-April 2017 foreign income will be matched after that date and how pre-April 2017 benefits or capital payments will be taxed in different situations. These are yet to be published.
Tainting protected settlements
The capital gains tax and income tax protections discussed above for non-resident trusts established by a settlor before he or she becomes deemed domiciled will be lost completely if property or income is added by the settlor to the trust during a period in which the settlor is deemed domiciled.
An addition made during such a period by the trustees of any other settlement of which the settlor is a settlor or beneficiary will also taint the recipient trust.
Once a trust is tainted and the protections lost, trust gains and foreign income will, in future, be taxed on an arising basis on the deemed domiciled settlor while he or she is a
Recycling benefits from protected settlements
The government is concerned that beneficiaries who are not close family members and are either non-resident or remittance basis users could agree to hold money received from a trust for a period of time and then give or lend it back to a beneficiary in the United Kingdom who would otherwise be taxed on it. The
As a result, the government is introducing a rule to ensure that where payments are made from a trust to such a beneficiary who makes a gift (which includes any benefit) to a beneficiary in the
In the event that the onward payment is made as part of arrangements for the payment made by the trustees to be received ultimately by the final beneficiary, rather than the original recipient, the rule will apply without the three-year time limit.
Following representations for some clarification as to how the benefit to a beneficiary of a capital payment made up of different assets should be valued, the government will introduce a set of rules which will apply across the capital gains tax and income tax benefits charges.
Offshore trusts are likely to have an increasingly important place in the planning of non-domiciled individuals intending to come to the
Nevertheless, the new regime may result in an increased tax burden and more onerous record keeping in some situations. Accordingly, it will be vital for trustees and settlors to take advice before making or (in the case of the settlor) receiving distributions, in case there may be tax implications for the settlor and, more generally, to understand all the potential consequences of the new regime.
Non-domiciled individuals who are approaching 15 tax years of residence in the
The government's concession with regard to cleansing mixed funds is potentially beneficial. Any non-domiciled individuals (apart from formerly domiciled residents) who have such funds should consider taking advantage of the two-year window to segregate the constituents of their overseas accounts for the future. This segregation will be important even once an individual is
Where possible, and after careful consideration of their specific circumstances, settlors and trustees of non-resident trusts with significant levels of trust gains may wish to consider making distributions to non-resident beneficiaries before April 6
The proposed new rules will clearly have significant impact on non-UK domiciled individuals, particularly formerly domiciled residents. Some of the new provisions will affect individuals positively. However, there are a number of new provisions – not least the proposed anti-avoidance rules and those relating to loans in respect of UK residential property – that may be unhelpful and will require early and careful consideration.
It is disappointing that the government has decided to make a number of significant changes and additions to previously proposed measures so close to the introduction of the new legislation. Further, large sections of the new legislation are still awaited and the details of many of the new proposals are not fully clear.
It is also disappointing that the government has refused to reconsider its position on transitional relief to assist individuals who wish to restructure their holdings of
Nevertheless, for those who do wish to consider some form of restructuring, advice should be taken as soon as possible. This would also be sensible for those who may be caught by the new deemed domicile provisions, whether as formerly domiciled residents or otherwise, especially if they may be considering a period of non-residence or taking advantage of transitional provisions where they are available.