1. The UK Trusts Register: Impact for non-UK trusts
STEP Mauritius Conference 2019
Catherine de Maid

2. Points to discuss Background
Scope of the UK trusts register for non-UK trusts
Reporting obligations
Reporting deadlines
Access & enforcement
HMRC guidance
5AMLD
Practical Points

3. Background Legislation: HMRC Online Register:
Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 came into effect from 26 June 2017
Implementing EU’s 4AMLD 2015/849/EU
EU’s 5AMLD came into force on 9 July 2018 and member states have until 10 January 2020 to give effect in local law
5AMLD extends the scope of the Trust Register
HMRC Online Register:
The HMRC online Trust Registration Service was launched on 10 July 2017
The Trust Register is live on HMRC’s website and accessible to trustees and their agents
No ability to amend the Register yet

4. Scope of the UK trusts register for non-UK trusts
Trusts are non-UK trusts if:
None of the trustees are UK resident
At least one trustee is UK resident; and the settlor was not UK resident and UK domiciled when the trust was set up or when the settlor added funds*
*N.b. this differs from the rules for tax residence of trusts which look at the residence or domicile position of the settlor.
Non-UK Trusts must report if:
It’s an express trust (i.e. documented); and
The trust:
receives UK source income; or
has assets in the UK;
on which it is liable to pay one or more of the relevant UK taxes**
**income tax, CGT, inheritance tax, stamp duty land tax (or the Scottish equivalent) or stamp duty reserve tax
The regulations as drafted suggests that non-UK trusts are only relevant trusts if they have relevant UK tax events. Where UK assets are held by an underlying non-UK holding company, or UK source income arises within such a company, it will not in itself result in the trust being registrable.

5. Reporting obligations
Name of trust, date established, where resident and administered
Statement of accounts for the trust assets (including values & category of trust assets)
Name of paid tax, legal & financial advisors
Identity of all beneficial owners (including class if not determined)
If a non-UK trust is within scope then the trustees must:
Obtain and hold certain information on the trust and (for paid trustees) maintain these trust records for 5 years from the end of the trust and then delete such information
Register the trust with HMRC’s online service by 31 January
Review and update the reported information by 31 January following each year the trust pays one of the relevant taxes
Trust
information
Full name
Date of birth
NI number / unique tax reference; or
Residential address & (if not a UK address) passport/ID card number
Role in relation to the trust
Beneficial owner
Information
(individuals)
Individual
information
Full name and UTR
Registered or principal office
Legal form
Register of companies where registered
Role in relation to the trust
Beneficial owner Information
(entities)
Relevant persons?

6. Beneficial Owners Beneficial Owners includes: The settlor The trustees
The beneficiaries including any potential beneficiary in a document from the settlor relating to the trust (i.e. a letter of wishes)*
The class of beneficiaries (where not all of the individual beneficiaries have been determined)
Any individual with control over the trust. This includes almost all protectors even those with only consent, or veto powers
* However the explanatory memorandum to the regulations confirms this will not include someone who is unlikely to benefit from an asset despite being named in a letter of wishes (e.g. if they are only a potential beneficiary if someone pre-deceases them).

7. Reporting deadlines
Not all deadlines for registration are contained in the Regulations
The register performs two functions:
The register of beneficial ownership envisaged under EU 4th Anti-money laundering directive; and
The means for trustees to register trusts with HMRC for delivering tax returns under Taxes Management Act and Inheritance Tax Act

8. Reporting deadlines
5 October 2019
Trusts "set up" or starting to make UK income or gains between 6 April 2018 and 5 April 2019
31 January 2020
Trusts liable to pay one of the relevant taxes during the 2018/19 tax year (if already registered then just need to review and update if any changes)

9. Access and enforcement
Who can access the register?
“law enforcement authorities”:
HMRC, FCA, NCA, Police, SFO
Purpose is law enforcement so not public (for the time being)
5 AMLD proposes making registers of beneficial ownership public
Failure to register
Potentially severe penalties:
Civil
Fines
Professional sanctions
Criminal
Imprisonment up to two years
Reputational damage

10. HMRC (draft) guidance
TRS – frequently asked questions published November 2017 but still listed as draft
Express view that offshore trusts owning overseas companies that own UK residential property should be registered on the Trust Register in respect of a tax year when the trustees are liable to IHT
STEP wrote to HMRC to clarify its view
HMRC now confirmed that it no longer believe UK trusts are reportable in these circumstances. HMRC's reply to STEP also states ‘[a]s you may know, non-UK companies that own UK residential property are already obliged to register with the Department for Business, Energy and Industrial Strategy (BEIS)’.
We understand that in subsequent correspondence HMRC has confirmed that the reference to there being an existing obligation to inform BEIS is also incorrect and that that won’t be the case until 2021

11. 5AMLD
Policy consultation with HMRC is overdue (winter ) followed by a consultation on draft legislation in Spring 2019
Broadens the access to information on beneficial ownership - accessible to those with a “legitimate interest”
Requires trustees to register information on beneficial ownership in all cases, not only those with a UK tax liability
Article 8 European Convention on Human Rights
GDPR

12. Practical points Requirement in Regulations
Consequence or Opportunity?
The trust has UK situs assets
Reporting should not be required where the company holds shares in an offshore company holding UK residential property (which are subject to IHT) as the new 2017 legislation does not make those shares UK situs.
Liability for one of the relevant taxes which the trustees are liable to pay tax on
Transfer UK assets to an underlying non-UK company?
Trustee is liable to pay one of the relevant taxes
There is no liability for non-UK resident trusts to pay tax on-UK source income unless there is a UK resident beneficiary.
Potential beneficiaries named in a document from the settlor relating to the trust
Use a trustee documented memorandum rather than a letter of wishes signed by the settlor?

13. Examples The Burges Salmon Trust Trustees and settlor non UK resident.
Settlor is a beneficiary and non-UK domiciled.
None of the beneficiaries are UK resident.
Trustees own shares in a listed UK company directly.
Shares pay dividends on a quarterly basis.
Is there an obligation to register? 10 year anniversary? Settlor moves to UK? Beneficiary moves to UK? Beware - Loans to UK resident beneficiaries.