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HMRC Deadline Looms For Registering Express Trusts: What’s Changing? – Wills/ Intestacy/ Estate Planning



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Which trusts are now required to register, what are the
deadlines and what are they required to disclose?

Taxable UK trusts have been required to register on the HMRC
trusts register since 2018 but now the 1 September 2022 deadline
for the registration of most other UK trusts is nearly upon us.

All businesses should conduct an urgent review of their holding
structures to identify any trust arrangements, particularly assets
held by nominees, and work to ensure these are registered as soon
as possible.

Non-taxable trusts 

Trusts which have no tax liabilities are now required to
register by the later of 1 September 2022 or 90 days from the
commencement of the trust (unless exempt – see below). 

This includes all kinds of arrangements which you may not think
of as a “trust”.

Which trusts does this apply to?

The rules apply to all express UK trusts which are or were in
existence on or after 6 October 2020, unless they fall within one
of the categories of excluded trusts.  Non-UK trusts must also
register if they have:

  • acquired UK land after 6 October 2020; or

  • have a UK trustee and have entered into a business relationship
    with a regulated business (such as lawyers, accountants or a bank)
    in the UK after 6 October 2020.

The rules do not apply only to trusts created by deed and there
is no de minimis exception.  They also
apply, for example, to:

  • Co-owned property, wherever the legal (registered) owners are
    not the same as the beneficial owners of the property, including
    land pooling arrangements;

  • Employee benefit trusts;

  • A partner holding assets for a partnership under a written
    declaration (most Limited Partnership agreements will contain a
    declaration of this type);

  • Most bare trusts and nominees (that is, wherever assets are
    held in a name other than the beneficial owner); 

  • Trusts holding investments or insurance policies; and

  • New pilot trusts holding nominal sums

What are the exclusions?

Trusts that do not need to register, unless they are liable for
UK tax, include:

  • Trusts created in the course of a commercial transaction, where
    the trust is incidental to the main purpose;

  • Funds held pending the performance of a contract, such as cash
    held between exchange and completion on a property sale;

  • Trusts holding assets for registered pension schemes, and those
    holding death benefit payments made within two years of the date of
    death;

  • Trusts holding life or retirement policies which pay out on
    death, critical illness or disablement;

  • Trusts made under a court order, or imposed by the intestacy
    rules, and trusts for vulnerable beneficiaries;

  • UK registered or exempt charities;

  • Trusts created by Will and wound up within 2 years of death;
    and

  • Trusts set up before 6 October 2020 and holding less than
    £100.  

The full set of exceptions are listed in Schedule
3A
 to The
Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017
(legislation.gov.uk)
.

What details are needed?

The disclosure required is less than for a taxable trust. One
lead trustee needs to provide their name, address, date of birth,
residence and nationality. A national insurance number is needed
for UK resident trustees and passport numbers for those who do not
have them. Corporate trustees need only provide their name and
address.

For the other trustees, the beneficiaries and the settlor(s),
the details are limited to their name, date of birth, nationality
and residence. Beneficiaries can be named as a class where the
individual beneficiaries can’t easily be identified, and are
not currently benefitting from the trust, avoiding the need to
collect their information.

Record keeping 

One part of the trust legislation which has received
surprisingly little attention to date is the obligation placed
on 
trustees to keep records
 of the information that must be
recorded on the register. This is key as it applies to all express
trusts including those that fall within the exceptions and so are
not required to register.  

Taxable trusts

Trusts with a UK tax liability have been obliged to register
since 2018 and this obligation continues. Trusts that are
registered as non-taxable but later incur a tax liability need to
file additional information, the most onerous being details and
values of the trust’s assets at the time of registration.
 

Who will read the register?

The register is only accessible to the “public” in two
scenarios: 

  • Investigations. Applicants can
    demonstrate that they are involved in an investigation into money
    laundering or terrorist financing as well as reasonable grounds to
    suspect that the trust is being used for these activities

  • Foreign companies. Applicants
    can obtain an entry whenever a trust holds a controlling interest
    in a company which is outside of both the EEA and UK.

The second is the much greater threat to privacy as it could
easily apply to numerous nominee arrangements holding investments
in foreign companies. It may provide much more scope for the press
and private investigators to obtain information on registered
trusts.

Penalties

Theoretical penalties are severe but HMRC’s latest update
confirms that they will not issue penalties for a first failure or
late registration unless the failure is shown to be due to
deliberate behaviour. They will instead issue warning letters. This
is in recognition of the fact that the register is “a new and
unfamiliar obligation for many trustees”. 

In practice, the extension to the rules will certainly result in
widespread non-compliance, particularly for many nominee
arrangements where families and businesses alike will not
appreciate that they hold trusts or be unaware of their
obligations. 

A further practical obstacle is that a trustee of a registrable
trust will not be able to engage regulated business (for example,
lawyers, accountants, banks, estate and letting agents) to advise
in relation to the trust or trust assets without first downloading
and providing a copy of their registry entry.

Originally Published 11 August 2022

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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