Final Response to Non-Dom Consultation Published

by McDermott Will & Emery

McDermott Will & Emery

In Depth

There is mixed news for affected individuals, including far-reaching changes relating to offshore trusts and a further wait (possibly until March 2017) for the rest of the draft legislation.

The following are highlights from the government’s response and the draft legislation.

Deeming Provisions

  • Deemed Domiciled: Non-doms will become deemed domiciled (deemed dom) for all UK tax purposes once they have been resident for 15 out of the previous 20 tax years (the 15 out of 20 rule). They will therefore be unable to claim the remittance basis of taxation and their worldwide estates will potentially be within the scope of UK inheritance tax (IHT). Individuals who were born in the UK and have a UK domicile of origin will be treated as UK domiciled during any period of UK residence, subject to a grace period for IHT.
  • Rebasing: Only non-doms who become deemed dom on 6 April 2017 under the 15 out of 20 rule will benefit from the opportunity to rebase their personally held foreign assets to their market value on 5 April 2017. This relief will only be available to individuals who have previously paid (or will pay for the 2016/17 tax year) the remittance basis user charge. Individuals who have not previously claimed the remittance basis should consider whether or not it is worthwhile paying the charge this year in order to benefit from the rebasing. Rebasing will not be available to assets held in trust or in respect of non-reporting funds.
  • Mixed Funds: Individuals who have been taxed on the remittance basis will have a window of two tax years from April 2017 to rearrange their mixed funds held in overseas bank accounts. Where adequate records have been kept, amounts can be remitted to the UK from such accounts free of tax and/or subject to Capital Gains Tax (CGT) before income tax.

Offshore Trusts Tax Reforms

  • Trust Protections: The good news is that neither foreign income nor gains will automatically be taxed on the arising basis on a UK resident non-dom or deemed dom settlor whilst assets are retained in trust (the Trust Protections).
  • Trust Income: Foreign income will only be taxed on the settlor by reference to benefits received by the settlor or a close family member (spouse, cohabitee or minor child), and only where those benefits are not already subject to tax in the hands of the recipient.  A non-dom settlor or beneficiary can benefit from the remittance basis, but a UK resident deemed dom settlor or beneficiary will pay income tax on the benefit, regardless of where it is received.
  • Trust Gains: Similarly, UK resident non-dom or deemed dom settlors will only be subject to CGT on capital payments, received by them or a close family member, that are matched to trust gains. If the close family member is UK resident, they will be taxed on the capital payment in priority over the settlor. Non-dom settlors and beneficiaries can claim the remittance basis in respect of payments received offshore, but deemed dom individuals will be taxed on such payments on the arising basis. Where the beneficiary who receives the payment is either a non-UK resident or claims the remittance basis in respect of the benefit, the payment will be attributed to the UK resident settlor.
  • The Trust Protections will, however, be lost if a settlor adds further funds to a trust whilst he or she is deemed dom.

Changes Not Consulted on Publicly

The big changes that were not publicly consulted on are as follows.

  • No Washing Out: From 6 April 2017, it will no longer be possible for any offshore trusts (regardless of the status of the settlor) to “wash out” gains by making distributions to non-UK resident beneficiaries. Such payments will no longer reduce trust gains so they will remain available to be matched to payments taxed on the settlor or other UK resident beneficiaries. This washing out of gains has been a key planning tool used by offshore trustees. Trustees of offshore trusts with UK resident and non-UK resident beneficiaries should carefully consider their options as a matter of urgency.
  • No Recycling: In certain circumstances, capital payments from trustees to an individual which are not immediately taxable under the new rules described above, will still be bought into charge if they are subsequently gifted or lent to a UK resident beneficiary within a period of three years. Where this charge applies, the payment will be taxed on the UK resident beneficiary. Again, this change will affect a number of beneficiaries of offshore trusts. They should consult with their advisers and the trustees to discuss what action should be taken prior to 6 April 2017.

UK Residential Property Tax Reforms

  • Inheritance Tax: UK residential property owned through offshore partnerships, close companies and similar entities will be subject to IHT, regardless of the domicile of the individual who established the structure.
  • De-Enveloping: No relief from CGT or Stamp Duty Land Tax will be provided for individuals required to de-envelope their property-owning structure. Structures currently paying the Annual Tax on Enveloped Dwellings (ATED) should consider de-enveloping as, from April 2017, they will continue to have an ATED liability but receive no IHT protection.  It should be noted that after 5 April 2017, the proceeds of the disposal of UK residential property held in an offshore structure will still be treated as within the scope of IHT for a period of two years following the disposal.
  • Loans: Any loans taken out in order to acquire or maintain UK residential property will be within the charge to IHT in the hands of a lender. This will apply to all loans, not just those made between connected parties, including loans to trustees.

Individuals who may be affected by the reforms should take advice as soon possible to ensure that they have time to plan for the new regime. 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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