My VIP Tax Team question of the week: Interest in Possession Trust

My Client is the life tenant of an interest in possession trust and has been living in a house owned by the trust. They have now been in a residential care home for 12 months. The trust was settled on death of their spouse in 2010. The trustees are going to sell the property and distribute the funds to the life tenant, which they have discretion to do so within the trust deed. What are the tax issues to consider?

There are several tax points here that need to be considered.

Capital Gains Tax

The trustees can make a claim for principle private residence relief on the sale of the property under s225 TCGA 1992. As your client has been in residential care, the last 9 months of ownership available for PPR can be extended to 36 months under s225E TCGA 1992. The trustees will have to make a formal claim for PPR to apply as it does not apply automatically.

Inheritance Tax

Firstly, as this trust was settled on death of your client’s spouse this would mean your client has an immediate post death interest – s49A IHTA 1984. This means that this is not a relevant property trust and so not within the scope of the IHT ten year and exit charges regime.

A consequence of the IPDI is that the trust property is already in your client’s IHT estate and so the transfer of the sale proceeds from the trustees to your client would not result in any disposition for IHT purposes.

Selling your client’s main residence will affect the availability of the residence nil rate band being available on their death. However, the downsizing addition of s8FB IHTA 1984 could be considered here depending on who is the beneficiary of your client’s estate under her Will. HMRC’s guidance on the downsizing availability is at IHTM46000 starting at IHTM46050.

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Tax Advice Consultant
0844 892 2470

Kiya previously worked in inheritance tax for a large accountancy firm where she dealt with accounts and various returns for trusts. She is AAT and ATT qualified and is currently studying ACCA. Kia also has experience of working in industry.

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