IHT treatment of specialty debts
The government has back-pedalled on a controversial decision on inheritance tax after widespread criticism. HMRC came under fire when it decided that a type of debt which had historically been exempt from inheritance tax would now be subject to it – going against centuries of legal precedent.
After discussions with professional bodies, it has now changed its position again – though things still aren’t back to how they were before. Let’s take a look at what’s going on.
What’s the history?
The controversy relates to a type of debt called a ‘specialty debt’, which is one owed to someone who is not domiciled in the UK. It’s a kind of debt created by a deed or a seal, not just a normal contract.
Historically, such debts, when owed to a non-dom, have been exempt from UK inheritance tax if the document recording the debt is held outside the UK. In 2013, however, HMRC decided that specialty debts should usually fall under the country where the debtor lived instead – so if the debtor lived in the UK, the debt would now fall under UK tax law.
Yeah, so what?
Under the Inheritance Tax Act, property outside the UK is not subject to inheritance tax if the person inheriting it is not domiciled in the UK. And although ordinary debts come under the country where the debtor lives for tax purposes, specialty debts are considered to be a special kind of debt, and it is a long-established UK legal principle that their legal location is that of the document recording the debt.
The principle goes back to the Elizabethan ecclesiastical courts, which held that “the debt is where the bond is, being upon a speciality; but debt upon a contract follows the person of the debtor”.
HMRC’s position was widely criticised for seeming to have come out of nowhere and conflicting with these established principles. Taxadvisermagazine.com described its change of mind as “an unexpected U-turn seemingly unsubstantiated by either legal or technical analyses”, adding:
“The practical reality is that specialty debts are an established category of formal contract in common law that has been in existence for many years, and entering such arrangements may not always be a result of only the overwhelming desire to mitigate inheritance tax exposure that HMRC believe has penetrated the non-dom society.”
Legal firm Forsters pointed out that UK resident non-doms often took out life insurance policies in the form of offshore deeds to protect them from inheritance tax.
So what’s the latest position?
HMRC’s new position is that the legal location of specialty debts will now depend on whether the debt is secured or unsecured. Broadly, where the debt is solely secured on land or other tangible property in the UK, the debt will also be in the UK.Where the debt is not secured, it will usually be where the document recording the debt is.
But if the creditor and debtor both live in the UK, but the deed recording the debt has been removed from the UK, HMRC may argue that the debt is in the UK and subject to UK inheritance tax.
The new complexities around specialty debts make it really important to seek guidance from a financial advisor or chartered tax accountant before entering into any arrangement of this nature – as the last thing you want is a large and unexpected tax bill.
