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27 min read 29 Jul 22
The UK government obligations under the Fourth Money Laundering Directive (4MLD) came into effect in June 2017 (see here ). Amendments to Regulations implementing 5MLD came into force on 10 January 2020 (effective for due diligence aspects). However, so as to allow for further consultation, this did not include changes required to the TRS. A government consultation was duly launched to consider the knock on changes necessary to the TRS. On 15 July 2020, the government published the main responses received and the next steps. TRS regulations under 5MLD came into force on 6 October 2020.
This article reflects 4MLD obligations and the impact of 5MLD. Draft HMRC Guidance dated 22 November 2017 is also reflected. There appears to be no published final guidance. This internal HMRC manual was published in May 2021 and covers off the TRS.
Regulation 44(1) of the 4MLD legislation requires trustees to maintain accurate and up to date written records of all the actual and potential beneficial owners of the trust. As mentioned below, the beneficial owners include all trustees, settlors, beneficiaries or any person who has control over the trust. If the trustees are being paid to act, they must maintain the records for a period of five years after the final distribution of the trust fund. This information should be held because under the legislation any law enforcement authority can request information about the beneficial owners of the trust and about any other individual referred to as a potential beneficiary in a document from the settlor such as a letter of wishes.
In the past, HMRC required completion of paper Form 41G (Trust) to register a new trust. This captured important information such as the names and addresses of the trustees, details of any professional agent acting, the governing law, lifetime trust or will trust, and so on. HMRC did state however “if there is no income arising, and no likelihood of income or gains in the future, you do not need to complete this form”. This was a useful exclusion in situations where the trust fund simply comprised a non- income producing investment bond.
HMRC embraced the digital world when it recognised the UK government obligations under 4MLD. Form 41G (Trust) was therefore withdrawn and instead trusts that are required to register, do so through the TRS.
Note that trusts in place before the introduction of the TRS are also required to be registered because the new legislation expands the scope of information previously collected.
The TRS provides a single online route for trusts (and complex estates) to comply with their registration obligations and to obtain their Self-Assessment (SA) Unique Taxpayer Reference (UTR). Trusts require a UTR in order to submit the SA tax return.
If the trust was initially registered as a non-taxable trust and received a Unique Reference Number (URN) (either because it was not liable to any tax, or was not liable to income tax or CGT) and it has since become taxable and requires a UTR, the trustees must notify HMRC who will ask for additional information. Once the change has been made, HMRC will send the lead trustee a UTR, usually within 15 working days. That will replace the URN that was provided when the trust was registered as non-taxable.
A complex estate is one that does not meet the conditions for using informal payment procedures.
For the avoidance of doubt, these TRS obligations are unconnected to the obligations to complete IHT100 when lifetime transfers are made.
Under 4MLD, ‘Express’ trusts with UK liabilities are required to register whether UK or non UK resident. As detailed below, 5MLD removes this link with taxation and widens the definition of trusts required to register
This is a trust created deliberately by a settlor, usually (but not always) in the form of a document such as a written deed or declaration of trust. Most trusts are express trusts. For example, think of a standard insurance company lifetime trust. However, an express trust need not be created only during the settlor’s lifetime but also can be created by will, to take effect on death.
Express trusts can be contrasted with trusts that come into being through the operation of the law and do not result from the clear intent or decision of a settlor to create a trust or similar legal arrangement (for example, implied or constructive trusts).
In addition, a statutory trust is not an express trust. This is a trust set up automatically under the terms of legislation. For example, in England and Wales the laws of intestacy provide for assets to be held in trust where the deceased dies without a will and leaves a surviving spouse and children.
Although not covered in the guidance, trust held policies effected under the Married Women’s Property Act would seem to fall within the definition of an express trust due to the clear intent of the settlor.
Trusts that are not express trusts are not required to register as registrable express trusts but may have to register for tax purposes if they have a UK tax liability in order to obtain a UTR number.
The legal responsibility for registration and updates lies with the trustees.
Where there are multiple trustees, it is a matter for the trustees to decide and appoint a lead trustee to complete the registration process. All trustees are equally legally responsible for the trust, and therefore the nominated ‘lead’ trustee is simply the main point of contact for HMRC. If, for example, there are four trustees, this would be recorded as one lead trustee and three additional trustees. The trustees can appoint an agent to complete the registration process if they so wish (see later section).
When a trust is registered for the first time, that is a new registration process. In later years the trustees will either just update the details of the existing registration or, in the case of a taxable trust, confirm that the details remain up to date and accurate.
We know from above that under 4MLD, ‘Express’ trusts with UK tax liabilities are required to register whether UK or non UK resident. These are “registerable taxable trusts”.
The UK taxes in scope are
We also know from above that 5MLD removed the link with taxation and widened the definition of trusts required to register. Accordingly, we now have “registerable express trusts”. All UK express trusts, and some non-UK express trusts, are required to register unless explicitly excluded from registration as an ‘excluded express trust’
Just to be clear, trusts now needing registered fall into 3 broad categories.
Note that Bare trusts (originally not needing registered) now need to be registered – the carve out that existed for them under 4MLD has been removed under 5MLD. There is also no carve out for trusts (bare and non-bare) holding a non-income producing investment bond.
The above definition of residence applies only for TRS purposes. See TSEM10005 for the residence rules for trusts for other purposes.
Below isn’t an exhaustive list (though full details are here for those interested). Certain trusts don’t need to register. Remember that an otherwise excluded trust is required to register if it has a UK tax liability (see earlier).
• Trusts holding insurance policies while the life assured is still alive.
The policy must only pay out (though see comments below regarding policies with surrender values) on death, terminal or critical illness or permanent disablement of the life assured, or to meet the cost of healthcare services provided to that person. It’s not relevant whether the policy is whole of life or term, providing the conditions are met.
Note that HMRC do not consider funeral plans are exempt under the ‘trusts of insurance policies’ exclusion since a funeral plan is not a life insurance policy.
Some insurance policies can be surrendered by the policyholder for a cash sum during the term of the policy. The possibility of a policy being surrendered does not in itself mean that a trust holding that policy cannot qualify for exclusion. This is because HMRC accepts that the surrendering of a policy is not generally the same thing as a pay out from that policy. The general position is that trusts holding policies with surrender values can remain excluded from registration until such time as the policy is actually surrendered. If a policy is surrendered and the cash sum is retained in the trust, the trust would be required to register from that point.
Iqbal takes out a whole of life insurance policy, which is written into trust at commencement. The policy will only pay out on the event of Iqbal’s death, but the policy is able to be surrendered for a cash value during Iqbal’s lifetime. As this meets the conditions set out above, the trust holding the policy is excluded from registration on TRS.
However, some policies (such as investment bonds) are designed to provide regular or periodic payments to the policyholder in the form of surrenders or part-surrenders during the term of the policy, with a small life assurance element payable on death which is incidental to the benefits provided through the surrenders. In those cases, HMRC’s view is that the withdrawals of cash in the event of a part or full surrender does constitute a pay out from the policy, because those withdrawals are intended from the outset as expected payments of funds from the policy. The exclusion does not apply to trusts holding these policies.
Margaret takes out an investment bond which she places in trust. Under the terms of the policy, Margaret is able to withdraw up to 5% of the funds invested per year in the form of a part-surrender of the policy. As these withdrawals are anticipated as an integral part of the design of the policy, they do constitute pay outs from that policy. The exclusion from registration on TRS does not apply.
Trusts of healthcare policies are excluded from registration during the term of the policy. The exclusion applies where the policy only pays out to meet the cost of healthcare services provided to the person(s) assured. Note that in order to retain an exemption, the ABI have commented that claimants of illness cover (critical illness; terminal illness; income protection) should ensure proceeds are paid direct to the end recipient on the instruction of trustees (as opposed to paying to the trustees). Insurance company payment procedures will determine if it is possible to pay direct to the end recipient.
A trust holding a policy excluded from registration during the life of the person assured continues to be excluded from registration if, following the death of the person assured, the trust receives the pay-out from the policy. The exclusion applies for two years following the date of death. This gives the trustees two years from the death of the person assured to distribute the funds to the beneficiaries of the trust before registration on TRS is required. If by the end of this period the funds have not yet been distributed to the beneficiaries, the trust is from that point required to register on TRS. In other words, any trust that holds the benefits received on death from a policy that qualifies for the exclusion (see Sch3A(4)), is excluded from registration for a period of two years following the date of death (Sch3A(8)).
Grace takes out a whole of life insurance policy which is written into trust. During Grace’s lifetime this trust is excluded from registration. On Grace’s death, the trust receives the pay-out from the policy. The trust remains excluded from registration for up to two years from the date of death giving time for the trustees to direct the pay-out to the beneficiaries of the trust.
Charles and Debra live together in a property owned outright by Charles. Charles dies and his will creates a trust giving Debra a life interest in the property, with the trustees having the power to sell and purchase a replacement property on the same terms. As a trust created by will, the trustees are not required to register the trust immediately on Charles’ death.
12 months following Charles’ death, the trustees sell the property and use the proceeds to purchase another property of similar value on the same terms, with Debra retaining her life interest.
As the trust fund still consists only of property from Charles’ estate (there has been a substitution but no additions), the trust is still excluded from registration. If the trust is still in existence two years after Charles’ death, the trust will be required to register from that point.
A company sets up an occupational pension scheme and applies for registration with HMRC under Part 4 of FA 2004. As the directors have a genuine expectation that this registration will be accepted, any trust holding the assets of the pension scheme will not be required to register on TRS in the interim.
Dominic opens a child savings account with a Building Society in the name of his infant daughter Mia. Dominic intends to pay funds into the account by regular standing order for Mia’s benefit as she grows older. Though Dominic is technically holding the bank account on bare trust for Mia’s benefit until Mia is old enough to take full ownership of the account, this trust does not need to be registered on TRS.
I. Registrable taxable trusts
Required to register by 31 January (or 5 October in some cases) following the end of the tax year in which the trust had a UK tax liability. See here for further information.
II. Registrable express trusts
TRS functionality was such that trustees of non-tax-paying trusts were initially unable to register. However in this Newsletter dated 2 September 2021, HMRC confirmed that the TRS was open for non taxable trust registrations.
TRS details must be kept up to date. Changes to the trust details or beneficial ownership must be registered within 90 days of the date that the trustees become aware of these changes.
If the trust is taxable, you must declare the register is up to date on an annual basis by 31 January.
As above, non-taxable trusts in place on or after 6 October 2020 must register on the TRS by 1 September 2022. But, what if the trust ceases before the deadline? HMRC stress that such trusts must still register. The trustees should register them on the TRS and then immediately close the trust record. HMRC state that it will take a proportionate approach should any such trust come to its attention after the September 2022 deadline.
The Chartered Institute of Taxation advise HMRC have confirmed…
non-taxable trusts newly required to register from 6 October 2020 must provide details of their beneficial owners as at that date, and then report changes to bring themselves up to date. Unfortunately, the system will not allow these trusts to record the dates of changes since 6 October 2020 accurately.
For all trusts required to register, the trustees need to provide certain information on the trust, as set out below. In addition to information on the trust itself, the trustees need to provide information on the persons involved in the trust.
The persons involved in a trust are the:
These persons may be individuals or legal persons such as companies. Together, they are known as the “beneficial owners” of the trust.
All trusts registering must provide information on the trust and the beneficial owners of the trust.
Trustees (or agents acting on behalf of the trustees) are asked to record on TRS whether a beneficial owner does or does not have mental capacity. It is not expected that trustees or agents take steps to arrange a formal assessment of mental capacity. Instead, an individual should be recorded as lacking mental capacity only when there is a reasonable belief that they lack mental capacity in relation to their involvement in the trust. If the trustee does not know whether the individual has mental capacity, or does not wish to record this information on TRS, trustees are able to answer ‘I don’t know’ to this question.
If trustees become aware of a change in an individual’s mental capacity status, then TRS can be updated to reflect that change. As trustees have to be able to carry out certain functions to fulfil their role, it is unlikely that an active trustee in the trust would lack mental capacity. In most cases a trustee who lacks mental capacity would cease taking any active role in administering the trust and be removed as a trustee.
If the other trustees wish to record that a trustee lacked mental capacity before he or she was removed from the trusteeship, this fact can be recorded on TRS before the trustee is removed from the record.
Trust details required https://www.gov.uk/hmrc-internal-manuals/trust-registration-service-manual/trsm32020
Trustee details required https://www.gov.uk/hmrc-internal-manuals/trust-registration-service-manual/trsm32030
Settlor details required https://www.gov.uk/hmrc-internal-manuals/trust-registration-service-manual/trsm32040
Beneficiary details required https://www.gov.uk/hmrc-internal-manuals/trust-registration-service-manual/trsm32050
Individuals or businesses who have control over the trust details required https://www.gov.uk/hmrc-internal-manuals/trust-registration-service-manual/trsm32060
Trustees who hold a controlling interest in a third country entity details required https://www.gov.uk/hmrc-internal-manuals/trust-registration-service-manual/trsm32070
For all trusts registering, the trustees must provide information relating to the beneficiaries and potential beneficiaries of the trust. The information required will vary depending on whether the beneficiary is an individual or a class of beneficiaries;
For Named beneficiaries, the trustees should provide full name, date of birth and nationality.
Trusts however are often set up for the benefit of a class of unnamed beneficiaries. For example, for the benefit of “all descendants of Mr Silva”. It’s reasonable to just record beneficiaries as part of a class if they can’t all reasonably be identified individually by the trustees.
If though all the members of the class can be identified individually by the trustees, they should instead be recorded as individual beneficiaries.
So, looking at the Mr Silva situation, if he settled the trust some generations ago it might not be reasonable for the trustees to now identify each descendent. The beneficiaries could therefore be recorded as a class of beneficiaries.
But, if the beneficiaries were instead a distinct group such as “the grandchildren of Mr Silva”, it is reasonable to expect the trustees to be aware of the identity of each individual. Therefore they should be recorded as individual beneficiaries rather than as part of a class of beneficiaries.
Where a beneficiary is un-named, being only part of a class of beneficiaries, a trustee will only need to disclose the identity of the beneficiary when they receive a financial or non-financial benefit from the trust.
In addition to the information listed above, trustees of trusts with a UK tax liability must also provide extra information relating to the trust, the assets held in the trust, and further information on the beneficial owners of the trust. Regarding the assets held in trust, the trustees are required to report the market value of the trust assets at the point of registration. The details of trust assets are only provided once at the first point of registration and if this changes over time they do not need to be updated on the Register. For an Investment Bond, the trustees should simply need to provide a description of the investment and the approximate value at the time the trust is being registered.
Remember incidentally that trustees need to provide details of additions to trust assets as part of their annual tax return where relevant. See question 12 of SA900.
Finally, for the avoidance of doubt, where a trust is already registered for TRS under 4MLD, some additional information will need to be provided to fulfil the requirements of 5MLD. This article prepared by the Association of Taxation Technicians details that requirement
How to register a trust depends on whether it’s a trustee or an agent registering a trust for a client.
Register a trust as a trustee
Register a trust as an agent
An agent will need to
* You must only apply to register for an agent services account if your business operates as an accountancy service provider. You must also be registered with a supervisory authority or with HMRC for anti-money laundering or have applied to HMRC for supervision.
Although the agent may have completed the initial registration for a trust, this does not provide authorisation to complete subsequent updates to the register. A further authorisation process is required. For those registering a trust that is liable to tax, HMRC will send the lead trustee a UTR, usually within 15 working days. The agent will need the UTR to start filing Self-Assessment tax returns. If the trust is not liable to pay tax, HMRC will send the lead trustee a URN, usually within 15 working days.
If trustees want an agent to view or make changes to a trust’s registration details, the trustees need to authorise the agent to manage the trust’s details. Trustees need to ‘claim’ the trust and inform the agent who can then sign into their online account. This leads onto the trustee being able to authorise the agent.
Whether the trustees employ an agent or undertake these duties personally is a personal decision to be taken on a case by case basis. Advisers considering acting as agents will need to balance the desire to assist trustees, possibly with limited experience of such matters, against the workload of registering and updating the TRS, and not forgetting the practicalities as to any impact on PI Insurance and any other compliance requirements e.g. training and competency. Another possibility is that advisers might point trustees in the direction of those who can provide an outsourced agency service.
With regard to professional advisers, the TRS requires the details of the agent (if one exists) registering on behalf of the trustees. No further information on other advisers is required. In saying that, trustees should keep their own written records of any advisers being paid to provide legal, financial or tax advice in relation to the trust.
In 2018, HMRC issued a statement regarding late filing penalties for the TRS. Here is a link to the Association of Taxation Technicians website. We are not aware of an update from HMRC reflecting the current position. The TRS sub-group have been considering the penalty structure. Official HMRC guidance is awaited.
Does a designated account create a bare trust? Perhaps but not necessarily.
Designated accounts are often just a naming convention where the account is "earmarked" for someone (typically a young person). In those simple circumstances, ownership remains with the person who set the account up and they can do with the money what they please. If so, there will be no TRS obligations. However, if an account has been irrevocably designated and a trust created, this will normally involve some form of paperwork and we consider this then introduces TRS obligations.
If the clear intent of someone designating an account, was to irrevocably give the money away to someone else, then they should make sure there is proof of the existence of a bare trust.
Under 5MLD, when entering into a new business relationship with a trust, ‘obliged entities’ must collect either proof of registration on the trust register, or an excerpt of the register – In fact, HMRC guidance states that trustees can download a pdf from the TRS to support these required due diligence checks.
The information contained in the PDF output
Trustees of an existing trust approaching a new adviser for investment advice and then subsequently applying for an insurance bond with a new provider would give rise to two new business relationships requiring proof of registration (firstly between trustees and adviser, and secondly between trustees and the insurance company). The proof of registration requirement before establishing a new business relationship with a trust applies from 1 September 2022. The obliged entity must check that the trust has been properly registered. Any discrepancies must be investigated and reported where appropriate. See Regulation 30A for full details. There is a TRS sub-group which amongst other issues is considering discrepancy reporting. Official HMRC guidance is awaited.
If the trust is specifically excluded from registration then presumably the obliged entity will wish to verify the exclusion is valid. A new business relationship between trustees and an insurance company would also arise, for example, where an individual wishes to assign an existing bond into a new gift trust.
HMRC do not consider that claims under existing policies held by trustee clients will result in a ‘new’ business relationship. Instead this is an event taking place within an existing business relationship.
Whether a change in the line-up of trustees creates a new business relationship may depend on the circumstances according to HMRC. For example, if a relevant person has an existing relationship with a trust and one of the four trustees of the trust changes (for example a trustee retires and a replacement is appointed), it is reasonable to take the view that the underlying business relationship with the trustees as a whole has not changed. However, if all trustees change then this would most likely be seen as the cessation of the old business relationship and the creation of a new one. See HMRC guidance at TRSM24010 (“Existing business relationships”) on this point.
What are the implications for ‘at issue’ trusts where the policy is issued into trust at inception? HMRC have indicated that where the trust is set up at inception then proof of trust registration is required before the new business relationship can exist. Insurance company new business processes will therefore need to adapt so that the trust is registered before the policy is issued.
There is currently uncertainty as to what providers should do at claim stage if they do not hold evidence of registration from an in-scope trust. Should payment be delayed until this evidence has been received? That would seem to meet the anti-money laundering aims of the legislation, though not specifically addressed.
Each European Union (EU) Member State is required to establish a Central Register of Beneficial Ownership of Trusts (CRBOT). The CRBOT will contain details of relevant trusts and their beneficial owners. With regard to Ireland, trustees must submit these details to ‘Revenue’ who manage the CRBOT. Each trust is then given a Trust Register number.
This can potentially impact UK trustees where none of the trustees are resident in the EU.
Consider a trust where none of the trustees are resident in the EU and the trust is not administered in the EU. The trust must be registered with the Irish CRBOT if
This will apply as long as:
A business relationship is a business, professional or commercial relationship between the trustee, on behalf of the trust, and the customer that is expected to be ongoing.
Consider a typical scenario of a bond in an express trust arrangement (gift trust, DGT etc.) involving UK trustees where the bond is issued in Ireland. Do the trustees need to register on the CRBOT?
Yes. The UK trustees have a business relationship in Ireland (the trustees hold a bond that was issued in Ireland by an Irish financial institution). None of the trustees are resident in the EU and the trust is not administered in the EU and so all these factors mean that the trust must be registered with the CRBOT.
Do these trustees also need to register on the UK TRS? Yes. HMRC have confirmed that unless covered by one of the UK exemptions, the trustees also need to register on the TRS regardless of whether the trust has a UK tax liability. The UK TRS registration deadlines are covered above in the section above entitled “Deadlines for registration and updating information held on the TRS”.
Other than the UK, note also that any Jersey/Guernsey trusts will be in scope given that the trustees will be non-EU resident.
This guide explains how UK trustees or their representatives can access the CRBOT. It’s important to note that UK trustees or their representatives do not require an Irish tax number to file on CRBOT.
This FAQs document is also of interest.
These details in particular are noteworthy.
The CRBOT will contain details of ‘relevant’ trusts, that means we need to understand what a relevant trust is.
A relevant trust is an ‘express’ trust established by deed or other declaration in writing. Accordingly, statutory trusts, resulting trusts and constructive trusts are not within the scope of CRBOT? Instead, CRBOT relates to express trusts only.
Given that all relevant trusts must register on the CRBOT, then trusts, such as pilot trusts and dormant trusts with nominal sums, do not have a de minimis exemption exempting them from registering.
The CRBOT has its own list of excluded trusts but be aware that the CRBOT exclusions do not mirror the UK TRS exclusions.
With regard to trusts which are excluded from registering on the CRBOT the list is very short (compared to the UK TRS – see earlier in this article). Excluded arrangements which are exempt from registering with the CRBOT include
UK pension schemes are not excluded and so need to register. The exemption therefore applies to Irish/EU pension schemes.
When we have more detail on these exemptions, we will update the article.
For trusts established on or before 23 April 2021, the registration deadline was 23 October 2021. Trusts created after 23 April 2021 must be filed within 6 months of their creation.
The Irish authorities do however recognise that there were difficulties for some trustees in registering their details by this date.
Where best efforts are being made to register, trustees are reminded that they can register their details after the 23rd October. Such instances will not be considered a failure to comply with the requirement to register, provided trustees complete their registration within a reasonable period.
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