Trusts in commercial settings

Although the common law trust has historically been used as a vehicle to hold property for successive generations within a family, it has also long been a feature in many kinds of commercial arrangements.

What is a trust?

A basic definition is a legal arrangement which involves a person (the ‘settlor’) transferring legal title to assets to another person or body (the ‘trustee’) to hold for the benefit of one or more persons (the ‘beneficiaries’), which may include the settlor. The terms of the trust are usually set out in a written instrument, often in the form of a deed. The trust imposes onerous duties on the trustee; failure to fulfil those duties properly may result in the trustee being held personally liable. It is important to note that the trust itself does not have any legal personality; rather, it is the trustee who is the principal actor and carries out the purposes of the trust in his own name.

For more information, see Practice Note: An introduction to trusts for commercial lawyers.

It is important to note that the trust has certain unique characteristics

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All in? Court confirms when a settlement is 'made' for the purposes of excluded property (Accuro Trust (Switzerland) SA v The Commissioners for HMRC)

Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.

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