Overseas Chambers of Peter Harris

Maison de la Boucterie
Rue de la Boucterie
Saint Saviour
Jersey, JE2 7ZW

For those UK nationals born in Britain and returning for Brexit: did you "dismember" your EU Property with a usufruct during your stay? France Belgium Netherlands Italy Spain Portugal .....?

January 31st 2019

If you were born in the United Kingdom and are being forced to return as a result of Brexit uncertainties,  if you fall within the definition of s.267 (1)(b) Inheriatnce Tax Act 1984 you can now be deemed not to have lost your UK domicile for IHT purposes, and that throughout the period of what would otherwise be a non-UK domicile of choice.

This will certainly affect those living in France butr retaining a residence in the UK who have asserted non-domicile status for that period

s. 267 Inheritance Tax Act 1984 as amended by the Finance Act 2016 now reads :

"Persons treated as domiciled in United Kingdom.

(1) A person not domiciled in the United Kingdom at any time (in this section referred to as "the relevant time") shall be treated for the purposes of this Act as domiciled in the United Kingdom (and not elsewhere) at the relevant time if-
(a)he was domiciled in the United Kingdom within the three years immediately preceding the relevant time, 
(aa)he is a formerly domiciled resident for the tax year in which the relevant time falls ("the relevant tax year"), or
(b)he was resident in the United Kingdom-
(i)for at least fifteen of the twenty tax years immediately preceding the relevant tax year, and
(ii)for at least one of the four tax years ending with the relevant tax year.

(2)Subsection (1) above shall not apply for the purposes of section 6(2) or (3) or 48(4) above and shall not affect the interpretation of any such provision as is mentioned in section 158(6) above.
(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)For the purposes of this section the question whether a person was resident in the United Kingdom for any tax year] shall be determined as for the purposes of income tax.
(5)In determining for the purposes of this section whether a person is, or at any time was, domiciled in the United Kingdom, sections 267ZA and 267ZB are to be ignored."

The result will be that anything done during your absence will therefore have been considered subject to IHT treatment as if you had never left.

I am not going to address certai issues such as the setting up of offshore trusts during the period of non-domiciliation , which is one issue, but rather practical and totally legal dismemberments of foreign immovable property for succession reasons in the country of your stay.

If you were sensible enough to have for example retained an Usufruit over your home abroad, and to have gven the nue-propriété to your issue, for succession purposes, HMRC will attempt to state to a s.267 (1)(b) taxpayer that they created an Settlement for IHT purposes.  That is in law and in fact wrong, but they have not yet stood down on that point.

Fro example, HMRC's documentation discloses their "view", it is not law, that if done after 2006, a dismemberment by gift or on death will incur an entrance charge to a fictive relevant property "settlement". That will be followed by a ten year charge on each ten year anniversary of the dismembement until the usufruct ends, when there will be an exit charge. None of that bears any resemblance to the actual foreign disposition made.  HMRC do not see that they in fact have no jurisdiction to readjudicate any form of English legal vehicle or conveyancing methodology over a foreign immovable property right or transfer. Parliament or the United Kingdom Government certainly has none: it follows that a non-ministerial department has no jurisdiction either.

In order to protect yourselves from such depradation, you wll need to act before returning to reside in the  UK.

Peter Harris has forced HMRC to accept that under certain conditions no settlement has been set up, so , if you are in this posiition, please contact him so that he can arrange the solution with your notary as how to undo the infamous Gordian Knot made up from s.43(2) ITA 1984 which HMRC will have no hesitation in placing in the way of those returning.