Most advisers will be familiar with the Trust Registration Service (TRS) which came into operation in 2017.

    It required the trustees of all trusts with a tax liability to register with HM Revenue & Customs (HMRC).

    Although there were teething problems, mainly with HMRC systems, most trustees registered.

    It's believed that some trustees, mainly those who don't use the services of an accountant, lawyer or financial adviser, haven't registered due to a lack of understanding about their obligations as a trustee. 

    The TRS was set up as a requirement of the Fourth Money Laundering Directive; EU rules designed to better protect member states against money laundering and terrorist financing. 

    We're now on the latest iteration of these rules, and have moved into the era of the Fifth Money Laundering Directive.

    This has expanded the scope of the TRS beyond 'express' trusts with a UK tax liability, so that trustees of all UK and some non-EU resident express trusts must register.

    An express trust is defined as a trust "clearly created by the settlor, usually in the form of a document, such as a written deed of trust."

    What trusts will be excluded?

    Not all trusts will need to be registered. It's intended that the following categories will be excluded:

    • Trusts imposed by statute, where these do not result from the clear intention of the settlor. For example, the statutory trust arising on intestacy
    • Charitable trusts regulated in the UK
    • Pure protection life insurance policies and those paying out on critical illness or disability, including group policies
    • Trusts for vulnerable beneficiaries or bereaved minors
    • Personal injury trusts
    • Will trusts created on death that only receive assets from the estate, and trusts that only receive death benefits from a life insurance policy and are wound up within two years of death
    • Existing trusts holding assets valued at less than £100 unless or until further assets are added

    Trusts commonly used in inheritance tax planning arrangements, including loan trusts, gift trusts and discounted gift trusts, will be required to register.

    Access to TRS data

    The Fifth Money Laundering Directive isn't concerned with the taxation of trustees but, as mentioned, has been introduced to counter the use of trusts for money laundering and the financing of terrorism.

    Information held by the TRS won't be able to be accessed by the public, but may be accessed by those who have a ‘legitimate interest’.

    A request for information "must necessarily be in relation to a specified instance of suspected money laundering or terrorist financing activity and form part of an investigation into this instance.

    "This will enable those involved in investigating and tackling money laundering and terrorist financing to access the beneficial ownership information needed to enhance the picture they are building around a suspected individual or organisation."

    Trusts that have already registered

    Trusts that have already registered will have to provide additional information about their beneficial owners.

    Trustees will also have to provide details of the trust assets and information about actual or potential beneficiaries.

    Timescales

    Trusts in existence as at 10 March 2020 must register by 10 March 2022.

    Trusts set up after 10 March 2020 must register within 30 days or by 10 March 2022, whichever is the later.

    After the 10 March 2022, trusts set up on or after this date will have 30 days to register.

    Once registered on the updated system, trustees will have 30 days from when they are aware of any changes to update the details.

    Trustees are responsible for registering, for providing the necessary information and making sure that such information is kept up to date.

    There will be a penalty regime for failure to comply.

    Online registration

    In the August edition of its trusts and estates newsletter, HMRC said:

    "It is not yet possible to register non-taxpaying trusts on TRS. The government is in the process of updating the TRS IT system to accommodate the new requirements set out within the regulations.

    "We will provide guidance about when and how trustees will be able to register in due course. Trustees will then have until 10 March 2022 to comply with this requirement."

    Registration will be online. For trustees unable to use HMRC's online system, whether for reasons of age, disability, being in a remote location or any other valid reason, they may be able to get further help from HMRC. 

    The registration process itself is far from straightforward.

    Where the trustees use an agent to deal with registration the process involves six steps... and then comes data entry. Let's hope keeping the details updated will be a simpler task.

    Information to be disclosed on TRS

    For each settlor, trustee, protector and beneficiary the following must be provided:

    • Name
    • Year and month of birth
    • Country of residence
    • Nationality
    • The nature and extent of the beneficial interest

    Where the beneficiaries have yet to be determined, only the class of beneficiary needs to be given.

    However, where an individual is referred to as a 'potential beneficiary' in a document from the settlor relating to the trust (such as a letter of wishes), the above information must be provided.

    In certain circumstances, details of the trust assets will be required as will identification details for the parties to the trust, that is, national insurance numbers or passport numbers.

    Planning

    10 March 2022 may feel like a long way off right now. 

    Yet for those advisers with a significant number of trustee clients, early planning will be necessary.

    The changes raise some important questions for advisers, like who will deal with the registration process. Will this be the trustee themselves, you as the adviser or a third party agent such as accountant?

    How much of the required information is already held? How easily can the outstanding information be compiled? This will all add up to a time-consuming process. 

    What processes will be in place to make sure the register is kept up to date?

    And of course, who will pay for the administrative overhead?

    When considering these questions, perhaps the deadline of 10 March 2022 isn’t that far off after all. 

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