Gift into Trust: an IHT bonus?

Mark McLaughlin highlights a useful exemption which can, among other things, allow funds to be transferred into trust without triggering an inheritance tax charge.

The inheritance tax (IHT) exemption for normal expenditure out of income is very generous. There is no upper limit on an individual’s gifts (or ‘transfers of value’) in monetary terms; the only cap is the amount of ‘spare’ income eligible to be given away.

Perhaps not surprisingly there are strings attached. A gift will only benefit from the normal expenditure out of income exemption if three conditions are all satisfied (in IHTA 1984, s 21), broadly as follows:

  • the gift was part of the normal expenditure of the person making it;
  • it was (taking one year with another) made out of his or her income; and
  • the person making the gift was left with sufficient income to maintain his or her usual standard of living.

These conditions appear straight-forward. However, HMRC apply them strictly, and according to their own interpretation of the rules (see HMRC’s Inheritance Tax manual at IHTM14231-IHTM14255). An analysis of the conditions is outside the scope of this article.

Cash gifts into trust

The normal expenditure out of income exemption can be useful in a number of ways, such as when making lifetime gifts of cash into a discretionary trust for family members.

A difficulty with such transfers is that an individual is generally limited in the amount of cash that can be gifted in a seven year period without incurring an IHT liability (i.e. to the available ‘nil rate band’ (£325,000 for 2017/18), subject to any reliefs and exemptions).

By contrast, gifts within the normal expenditure out of income exemption do not use the donor’s IHT nil rate band. Furthermore, unlike potentially exempt transfers (e.g. a cash gift between individuals) it is not necessary for the donor to survive at least seven years before the gift becomes exempt for IHT purposes (although see HMRC’s approach below).



Prove it!

However, care is needed. For example, HMRC considers that it has the right to decide whether a gift satisfies the exemption conditions. This is because the legislation states that the gift is exempt “if, or to the extent that, it is shown” that all the conditions are satisfied. HMRC interprets ‘shown’ as meaning ‘shown to the satisfaction of HMRC’ and considers that the gift therefore remains a chargeable transfer unless and until the normal expenditure out of income exemption is shown to apply (IHTM06106).

There is a general requirement to report chargeable transfers to HMRC within statutory time limits, such as cash gifts into a discretionary trust (IHTA 1984, s 216(1)(a)). However, this requirement is subject to an exception in certain circumstances. For example, a cash gift will qualify as an ‘excepted transfer’ (i.e. not reportable) broadly if the cumulative total of all chargeable transfers made by the donor in the seven years before the transfer, together with the value of the current chargeable transfer, does not exceed the IHT nil rate band (SI 2008/605, reg 4(2)).

HMRC’s stated policy is that where the normal expenditure out of income exemption is claimed to apply, and denial of the exemption would mean that there is an IHT liability, it expects an account to be submitted so that the availability of the exemption can be agreed (IHTM10652). Cynics might argue that reporting such gifts may well lead to disputes, on the basis that HMRC’s interpretation of the exemption conditions will probably be narrower and more restricted than donors or their advisers!

Anti-avoidance

A trust settlor making lifetime cash gifts into the discretionary trust (in the above example) should not be a beneficiary of the trust (or a potential beneficiary; see IHTM14393 at Example 2). Otherwise, the ‘gifts with reservation’ anti-avoidance rules may result in the trust’s assets forming part of the settlor’s estate on death (except to the extent that the property is not, does not represent and is not derived from, the original gift; see FA 1986, Sch 20, para 5(1)). The normal expenditure out of income exemption does not prevent a gift being chargeable under the gifts with reservation rules (IHTA 1984, s 21(5)).

Mark McLaughlin CTA (Fellow) ATT TEP is a co-founder of www.taxationweb.co.uk – see www.markmclaughlin.co.uk. This article was first published in Tax Insider (www.taxinsider.co.uk)

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