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8 - The taxation of private trusts

Graham Moffat
Affiliation:
University of Warwick
Gerry Bean
Affiliation:
DLA Phillips Fox
Rebecca Probert
Affiliation:
University of Warwick
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Summary

Tax planning and the trust

What to the legislator and parliamentary draftsman can appear as a trust problem may simultaneously be to the tax adviser a means of achieving a tax planning objective. In this first section we re-emphasise the peculiar facets of the trust that create this situation.

The basis of the trust's attraction for tax planning is founded on the fundamental division of ownership between nominal title, benefit and control.

P A Lovell ‘Reflections on a Unified Estate and Gift Tax Regime’ [1974] BTR 141 at 157–158

The trust as a device depends for its success on the correct interplay between three basic concepts: the ownership of property, the management of the same, and the beneficial interests therein and enjoyment thereof, …

Discretionary trusts, … are … problematic for, whilst ownership and management are vested in the trustees, the property is, in a material way, ownerless; the interest in possession is absent and the distribution of the benefits accruing from the trust property are distributable, subject to any powers of accumulation extant, at the discretion of the trustees.

… Even in those trusts where a beneficial interest in possession in income has been created, it may nevertheless be possible to combine such income enjoyment with an element of capital expectancy. Thus a beneficiary may be given a right to income at the same time as the trustees are given a power, should such be considered appropriate, to apply the capital, by outright transfer or otherwise, for the benefit of the same income beneficiary.

Type
Chapter
Information
Trusts Law
Text and Materials
, pp. 371 - 419
Publisher: Cambridge University Press
Print publication year: 2009

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