721AMeaning of “protected foreign-source income” in section 721

1

This section has effect for the purposes of rule 2 of section 721(3B) (cases where the individual is not UK domiciled and is not deemed domiciled by virtue of Condition A in section 835BA).

2

The income of the person abroad is “protected foreign-source income” so far as it is within subsection (3) or (4).

3

Income is within this subsection if—

a

it would be relevant foreign income if it were the individual's,

b

the person abroad is the trustees of a settlement,

c

the trustees are non-UK resident for the tax year,

d

when the settlement is created, the individual is—

i

not domiciled in the United Kingdom, and

ii

if the settlement is created on or after 6 April 2017, not deemed domiciled in the United Kingdom, and

e

no property or income is provided directly or indirectly for the purposes of the settlement by the individual, or by the trustees of any other settlement of which the individual is a beneficiary or settlor, at a time in the period—

i

beginning with the start of 6 April 2017 or, if later, the creation of the settlement, and

ii

ending with the end of the tax year,

when the individual is domiciled or deemed domiciled in the United Kingdom.

4

Income is within this subsection if—

a

it would be relevant foreign income if it were the individual's,

b

the person abroad is a company,

c

the trustees of a settlement—

i

are participators in the person abroad, or

ii

are participators in the first in a chain of two or more companies where the last company in the chain is the person abroad and where each company in the chain (except the last) is a participator in the next company in the chain,

d

the individual's power to enjoy the income results from the trustees being participators as mentioned in paragraph (c)(i) or (ii),

e

the trustees are not UK resident for the tax year,

f

when the settlement is created, the individual is—

i

not domiciled in the United Kingdom, and

ii

if the settlement is created on or after 6 April 2017, not deemed domiciled in the United Kingdom, and

g

no property or income is provided directly or indirectly for the purposes of the settlement by the individual, or by the trustees of any other settlement of which the individual is a beneficiary or settlor, at a time in the period—

i

beginning with the start of 6 April 2017 or, if later, the creation of the settlement, and

ii

ending with the end of the tax year,

when the individual is domiciled or deemed domiciled in the United Kingdom.

5

For the purposes of subsections (3)(e) and (4)(g), the addition of value to property comprised in the settlement is to be treated as the direct provision of property for the purposes of the settlement.

6

Section 721B (tainting) contains further provision for the purposes of subsections (3)(e) and (4)(g).

7

In this section—

• “participator”, in relation to a company, has the meaning given by section 454 of CTA 2010;

• “deemed domiciled” means regarded for the purposes of section 718(1)(b) as domiciled in the United Kingdom as a result of section 835BA of ITA 2007 having effect.

721BSection 721A: tainting

1

This section applies for the purposes of subsections (3)(e) and (4)(g) of section 721A.

2

Ignore—

a

property or income provided under a transaction, other than a loan, where the transaction is entered into on arm's length terms,

b

property or income provided, otherwise than under a loan, without any intention by the person providing it to confer a gratuitous benefit on any person,

c

the principal of a loan which is made to the trustees of the settlement on arm's length terms,

d

the payment of interest to the trustees of the settlement under a loan made by them on arm's length terms,

e

repayment to the trustees of the settlement of the principal of a loan made by them,

f

property or income provided in pursuance of a liability incurred by any person before 6 April 2017, and

g

where the settlement's expenses relating to taxation and administration for a tax year exceed its income for that year, property or income provided towards meeting that excess if the value of any such property and income is not greater than the amount of—

i

the excess, or

ii

if greater, the amount by which such expenses exceed the amount of such expenses which may be paid out of the settlement's income.

3

Where—

a

a loan is made to the trustees of the settlement by the settlor or the trustees of a settlement connected with the settlor, and

b

the loan is on arm's length terms, but

c

a relevant event occurs,

the principal of the loan is to be regarded as having been provided to the trustees at the time of that event (despite subsection (2)).

4

In subsection (3) “relevant event” means—

a

capitalisation of interest payable under the loan,

b

any other failure to pay interest in accordance with the terms of the loan, or

c

variation of the terms of the loan such that they cease to be arm's length terms.

5

Subsection (6) applies (subject to subsection (7)) where—

a

the settlor becomes deemed domiciled in the United Kingdom on or after 6 April 2017,

b

before the date on which the settlor becomes deemed domiciled in the United Kingdom ( “ the deemed domicile date ”), a loan has been made to the trustees of the settlement by—

i

the settlor, or

ii

the trustees of a settlement connected with the settlor,

c

the loan is not entered into on arm's length terms, and

d

any amount that is outstanding under the loan on the deemed domicile date (“the outstanding amount”) is payable or repayable on demand on or after that date.

6

Where this subsection applies, the outstanding amount is to be regarded as property directly provided on the deemed domicile date by the lender for the purposes of the settlement (despite subsection (2)).

7

But if the deemed domicile date is 6 April 2017, subsection (6) does not apply if—

a

the principal of the loan is repaid, and all interest payable under the loan is paid, before 6 April 2018, or

b

the loan becomes a loan on arm's length terms before 6 April 2018 and—

i

before that date interest is paid to the lender in respect of the period beginning with 6 April 2017 and ending with 5 April 2018 as if those arm's length terms had been terms of the loan in relation to that period, and

ii

interest continues to be payable from 6 April 2018 in accordance with those terms.

8

For the purposes of this section, a loan is on “arm's length terms”—

a

in the case of a loan made to the trustees of a settlement, only if interest at the official rate or more is payable at least annually under the loan;

b

in the case of a loan made by the trustees of a settlement, only if any interest payable under the loan is payable at no more than the official rate.

9

For the purposes of this section—

• a settlement is “connected” with a person if the person is the settlor or a beneficiary of it;

• “deemed domiciled” has the same meaning as in section 721A;

• “official rate”, in relation to interest, means the rate of interest applicable from time to time under section 178 of FA 1989 for the purposes of Chapter 7 of Part 3 of ITEPA 2003.