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Where Taxpayers and Advisers Meet

Marshall v Kerr

Posts: 99
Joined: Wed Aug 06, 2008 3:31 pm

Postby Brightonian » Fri Nov 03, 2006 7:12 am

I am getting conflicting opinions as to whether or not Marshall v Kerr applies to IHT or simply to CGT - even the Revenue website contradicts itself!I have a client who is a beneficiary under a Canadian will. We wish to vary the will trust so that the assets pass to an offshore settlement but this will only be useful if the deceased is treated (under UK law))as the settlor, rather than the original beneficiary of the will. Does anyone kniow if the decision in Marshall v kerr applies for IHT?

Posts: 6538
Joined: Wed Aug 06, 2008 3:22 pm

Postby King_Maker » Fri Nov 03, 2006 7:45 am

It seems HMRC's view is that the deceased is not the Settlor of a trust created by the DoV, unless it is done by Disclaimer.

See TSEM 1815 on HMRC's website.

Unfortunately, I have no personal experience on the matter.

Posts: 99
Joined: Wed Aug 06, 2008 3:31 pm

Postby Brightonian » Fri Nov 03, 2006 7:52 am

Thank you for your contribution _ I saw the manual entry you refer to. However, Tax Bulletin 74 seems to contradict thsi by saying that the IHT legislation is different from the CGT legislation considered by the judge in Marshall v Kerr! Very confusing!

Posts: 7598
Joined: Wed Aug 06, 2008 3:25 pm

Postby maths » Sat Nov 04, 2006 5:07 am

Williams on Wills (para 241.9)seems clear that for IHT the settlor is the deceased.

IHTM 35151 seems equally clear.

Kessler "Taxation of Non-Doms" seems also clear.

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