With the deadline of 5 March 2018 fast approaching, many members will be busy completing registrations with the Trust Registration Service (TRS). HMRC are expecting that around 170,000 trusts will need to register with the TRS by this date.
We have received some further clarification from HMRC on a number of areas of concern that have been raised with us by members. HMRC have confirmed that, given that the filing deadline is so close, there will be no further updates to their FAQs provided on the 22 November for the 2016-17 registration season. The ATT will be updating their briefing note for the items below in the coming days.
HMRC are planning to announce details of the penalties regime at the end of February 2018.
Trusts Created from a Deed of Variation
A number of members have asked for clarification about who should be declared as the settlor for TRS purposes where a trust has been created by a Deed of Variation. While the deceased is usually deemed to be the settlor for IHT purposes, they are not always the settlor for general law purposes – see TSEM1815. It may be helpful to appreciate that the TRS is seeking to replicate the information that trustees previously provided on the (now withdrawn) form 41-G.
The ATT and CIOT have discussed the position with HMRC and agreed the following wording and examples:
“Where the trust has been established by a Deed of Variation or family arrangement, give details of each person who took less under the deed than they would have done under the will. Each person is a settlor of the amount given up and should be disclosed on the Register as a settlor.
It will also be necessary to report the deceased as a settlor on the Register where property which would have been settled in trust on the death of the deceased is now comprised in this settlement.
Example 1: The will of the deceased leaves 100% of the estate to their spouse under the will. The spouse varies the will with a Deed of Variation to leave 50% of the estate into a trust. The settlor to be reported on the Register is the spouse, as they have given up an entitlement under the will.
Example 2: The will of the deceased leaves 50% on discretionary trust for their children and 50% to their spouse. The spouse varies the will so that the entire residue is left on the trusts declared in the deceased’s will to the children. The trust has received assets from both the spouse who has given up their entitlement, and the deceased under the original will, and both the deceased and the spouse will need to be reported as settlors on the TRS.”
Trusts created by will
A number of members have asked for confirmation of who should be reported as the settlor for a trust created in a will. We have received some reports that HMRC’s Trust and Estate helpline has indicated that the executors should be named. HMRC have confirmed to us that the deceased should be reported as the settlor.
“We will look into this further as part of the next iteration of the guidance for publication after 5 March 2018. In the interim, our advice is that deceased is the settlor.”
Corrections to the Register
A number of members have asked what they should do if they find that an amendment is needed to the information submitted via the TRS because, for example, guidance has changed since they submitted the return, or an innocent error has been made. The ATT and CIOT have agreed the following wording with HMRC to share with members:
“It is not currently possible to amend what has been submitted via the TRS for the Trust Register. The ability to amend or update the Register will come later in the year when the next release of the TRS is provided.
“In the meantime, where an agent or trustee realises that the information submitted via the TRS is incorrect, and the error has been made in good faith, then we [HMRC] would ask that a note is made on the files of the amendment that needs to be made and the circumstances surrounding the error. We are asking agents and trustees to wait until the next release of the TRS is available to make amendments, rather than write in to us. The only exception to this will be where a change is required to the lead trustee’s details. These should be notified to us by letter to Trusts, HM Revenue & Customs, BX9 1EL. This is to ensure that we always have the correct details to contact the lead trustee about the trust.
“Agents/trustees will not be penalised for filing an incorrect return where the error was made in good faith and any corrections required to the Register are made within a reasonable timescale of the facility to make amendments becoming available.”
Trusts Paying Stamp Duty and Stamp Duty Reserve Tax (SDRT)
Under the regulations, the trust must be liable to one of a number of taxes to have a requirement to register. This list includes Stamp Duty Reserve Tax (SDRT) but not Stamp Duty. Members have queried with CIOT whether a trust which pays Stamp Duty (on the transfer of an unlisted share) would need to register via the TRS. The ATT and CIOT have confirmed with HMRC that they can share the following wording with members:
“Our position [HMRC] is that a trustee of a relevant trust that incurs stamp duty in relation to trust assets in a given tax year would be required to register that trust on the TRS because the payment of stamp duty will cancel a SDRT charge that may otherwise arise.
“The TRS Regulations exclude a reference to stamp duty because an agreement for the purchase of such shares normally gives rise to an immediate liability to SDRT and the SDRT liability is in turn cancelled by the payment of stamp duty. We will ensure that in the next iteration of our FAQ guidance we will make this position clear.”
Workarounds for missing or unobtainable data/Submitting the report with blank fields.
HMRC say that the TRS is being developed on an iterative basis and that, following feedback, a future version should allow agents and trustees to file reports with certain fields left blank.
Some limited workarounds were provided in HMRC’s December Trust and Estates Newsletter where trustees have not been able to obtain information such as dates of birth, postcodes or NI numbers for deceased individuals.
Where the NI number is not available for a living individual, HMRC advise that a passport and address can be provided instead, following the onscreen instructions. Where an individual is under 16 and does not have either a NI number or a passport, the system should accept as sufficient data their address and data of birth.
HMRC have asked that the use of dummy data is kept to a minimum and that dummy NI numbers such as AB123456B are not used. We understand that system will not allow submission if a dummy NI number is used. If members find this is causing them problems, please let us know via the email addresses below.
“We do however expect agents and lead trustees to take all reasonable steps to obtain the missing information so that it can be added to the Register at a later point in time.”
Members had expressed concerns to us that staff using the main Agent Services account log-in for their firm could see registrations in progress for other trust clients. Members looking to maintain such internal confidentiality within their firm may wish to set up assistant or administrator accounts following the instructions here.
“An individual agent (using an assistant / admin account within an Agency) can only see their own partially completed registrations and they cannot see anyone else’s registrations within the organisation.”
Feedback from members about the Trust Registration Service and further queries on general issues that may affect a number of trusts are welcome. Please contact atttechnical [at] att.org.uk or technical [at] tax.org.uk using the subject heading ‘TRS’.