IHTM42982 | Employee benefit trusts: property leaving employee benefit trusts: where the charge is imposed

From HM Revenue & Customs · Inheritance Tax Manual

sets out three cases in which the flat rate charge () is imposed. These are

  • under , where settled property ceases to qualify under ; as a result of an event other than payment out of the settlement. This will often be the case where trust property is appointed onto sub-trusts (),

  • under , where a payment or a non-commercial loan is made out of trust property for the benefit of a person within or a person connected with them,

  • under , where the trustees make a disposition (other than by a payment) reducing the value of the employee trust property.

defines payment as including a transfer of assets other than money, so a charge arises when any assets are transferred to a beneficiary in the circumstances above.

A person is within if:

  • they have directly or indirectly provided any of the settled property (other than by additions not exceeding £1000 in any one year), or

  • in the case of employment by a close company, they are a participator and either

    • beneficially entitled to, (or to rights entitling them to acquire), more than five per cent of, or any class of the shares comprised in, its issued share capital, or

    • would, on a winding -up of the company, be entitled to more than five per cent of its assets; or

  • they have acquired an interest in the settled property for a consideration in money or money’s worth.

It is not uncommon to find that the trustees have made loans to beneficiaries of the trust. Depending on the terms of the loan, this can give rise to charges under when the loan is made and under if the trustees write off the loan at some later date.

If a loan is made at a commercial rate of interest, no charge will arise under , whether or not the recipient is a person within because there is no reduction in the value of the trust fund as is required by . On the other hand, if the loan is made at a favourable or nil rate of interest, that will confer benefit on the recipient and if they fall within a charge will arise under . The amount in charge will be the reduction in value of the trust fund resulting from the difference between the value of the funds loaned and the value of the right to repayment under the terms of the loan - although if the loan is made with in the first 3 months of the funds qualifying under , the rate of tax is nil.

If the trustees write off a loan, a charge will arise under on the fall in value of the trust fund. This applies whether the recipient is a person within or not. This is likely to equate to face value of the loan where it was granted at a commercial rate of interest; or the value of the right to repayment where the loan was granted on favourable terms.

So a loan granted at commercial rates is only likely to give rise a charge under if it is written off; whereas a loan granted on favourable terms will give rise to charge partially under at the time it is made and partially under if it is written off. In both cases, the values involved will depend on the terms of the loan.

Generally, a distribution from an employee benefit trust (EBT) to a participator will give rise to a charge under , unless the payment is income for Income Tax purposes ().

On the other hand and bearing in mind the purpose behind EBTs, there is no charge where a payment out of the trust is made to an employee or dependant who is not connected with a person within .