Assignment on divorce of life insurance policies, capital redemption policies and purchased life annuities

 

This article explains about a change of view that may affect the income tax implications when there is a transfer on divorce of all or part of the rights under a life insurance policy, life annuity contract or capital redemption policy. [All further references in this article to life insurance policies should be read as also being references to purchased life annuities and capital redemption policies.]

Background

Life insurance policies can give rise to 'chargeable events' on which 'chargeable event gains' can arise. These gains are taxable as income. Gains normally only arise when the policyholder receives value from the policy. There is no chargeable event and so no gain when the owner assigns all of the policy rights to another person but receives no money or money's worth in return. A gift of part of the policy rights could have given rise to a gain before the 2001-02 tax year, but cannot do so now.

When the owner sells a policy for cash to an unconnected third party it is obvious that the owner receives money or money's worth. But there may also be circumstances in which there is money or money's worth received in return for the change of ownership even when no cash changes hands.

Previous view of the law

Until recently the Inland Revenue took the view that the transfer by one spouse to the other of all or some of the rights under a policy as part of a divorce settlement was invariably for money or money's worth. It is for example not uncommon for a jointly owned mortgage endowment policy to change hands on divorce. This view was based on legal advice that an assignment as part of a divorce settlement involved a valuable "exchange" of rights. The policy rights in such cases were understood to be transferred in return for the surrender by the transferee of rights over other property, which he or she would otherwise have been able to exercise to obtain alternative financial provision. As a consequence the assignment of all or part of the policy rights was potentially within the charge to tax.

Revised view of the law

The Inland Revenue has now received further legal advice that the relevant matrimonial legislation, and the nature of the court orders following proceedings under that legislation, mean that it must revise its view. This follows judicial observations by Coleridge J. in G v G [2002] EWHC 1339 about capital gains tax gift hold-over relief (see article in August 2003 Tax Bulletin). The advice is that where there is recourse to the courts and a court makes an order

• for ancillary relief under the Matrimonial Causes Act 1973 (or for financial provision under the Family Law (Scotland) Act 1985) which results in a transfer of rights under a life insurance policy from one spouse to another or
  
• formally ratifying an agreement reached by the divorcing parties that deals with the transfer of assets including a life insurance policy

the spouse to whom the rights under the life insurance policy are transferred does not give money or money's worth, in the form of surrendered rights, for their transfer. A Court Order made in these circumstances reflects the exercise by the court of its independent statutory jurisdiction. The transfer of ownership is not therefore the consequence of any party to the proceedings agreeing to surrender alternative rights that they might have in return for receiving rights under the life insurance policy.

This new approach represents a change in the previous view and prevailing practice. One consequence is that transferring ownership of the rights conferred by a life insurance policy under a Court Order is not for money or money's worth and no gain can arise because of it.

In the past insurers may have issued chargeable event certificates reporting gains as a result of assignments on divorce. The Self-Assessment (SA) Tax Return Guide for 2002-03 income also says that such assignments are to be treated as being for money or money's worth for tax purposes.

As a consequence of this new approach, anybody

• who has included a gain in box 12.2 or box 12.5 of the SA return (or box 6.8 of the foreign pages) and
  
• the gain arose as a result of assigning some or all of the rights under a policy as part of a divorce settlement and
  
• the transfer took place in the circumstances described above,

may be entitled to amend their SA return provided they are within the normal time limits for doing so.

Years affected and time-limits for amending a Self-Assessment - chargeable event gains

As this revised interpretation represents a change of view and of prevailing practice, there is no right for taxpayers to go back to years that are not in-date for an amendment to the SA return. The in-date years are as follows:

• SA returns for years of assessment before 2001-02 may only be amended where a life insurance policy has been the subject of a full assignment* on divorce, a court order was made and, exceptionally, the returns are either still within the time limit for amendment by the taxpayer (because the notice requiring a return was issued later than normal) or are under enquiry
  
• All SA returns for 2001-02 may be amended before 31 January 2004, where a life insurance policy has been the subject of a full assignment* on divorce where a court order was made.
  
• SA returns for 2002-03 may be amended before 31 January 2005 where the gain arose as a result of a full or part assignment on divorce where a court order was made.

(*The new interpretation does not normally alter the tax treatment of part assignments taxable in years prior to 2002-03. Before changes to the taxation of part assignments were made in Finance Act 2001, they were potentially taxable whether or not they were made for money or money's worth. The way in which the FA 2001 commencement rule operates means that part assignments made during the year ended 5 April 2002 are generally not taxable until 2002-03.)

Taxpayers who want to amend their SA return and are within the time limit for doing so should send the amendment to their tax office. If that time limit has passed but the return is under enquiry this matter should be brought to the attention of the officer conducting the enquiry.

Life Assurance Premium Relief ('LAPR')

Some people may have had LAPR removed from the premiums they pay because a change of life assured took place at the same time as an assignment to change the beneficial ownership of the policy as part of a divorce settlement. LAPR is only available for qualifying policies taken out before 14 March 1984.

One of the necessary conditions for retaining entitlement to LAPR in these circumstances is that there is no consideration given in connection with the change of life assured. Under the revised view the Inland Revenue acknowledges that there is no consideration for the assignment where there is recourse to the courts and a court makes an order

• for ancillary relief under the Matrimonial Causes Act 1973 ( or for financial provision under the Family Law (Scotland) Act 1985) which results in a transfer of rights under a life insurance policy from one spouse to the other or
  
• formally ratifying an agreement reached by the divorcing parties that deals with the transfer of assets including a life insurance policy.

The change of view may mean that the new owner of the policy should have continued to receive LAPR but did not do so. The policyholder may therefore be eligible to apply now to the insurer to restore tax relief at source from future payments of premium. However, if the change of life assured on the policy took place when there was less than ten years to run before the maturity of the policy, it may not be possible to have LAPR reinstated.

The insurance company will know the details of a policy and is best placed to be able to say whether a policy is a qualifying policy. A qualifying policy is a regular premium policy with a life of at least 10 years. The most common type of qualifying policy is a mortgage endowment policy. There is normally no income tax charge when a qualifying policy pays out.

Years affected and time-limits for making a claim - LAPR

Policyholders are entitled to claim relief for all past years that are in-date for claims. They have to claim relief from the Inland Revenue, not from their insurer. The statutory time limit for making such a claim is longer than for making an amendment to an SA Return. Policyholders have 5 years from the 31st January following the year of assessment to which the claim relates to claim LAPR. The earliest in-date year of assessment is at present 1997/98. The time-limit for a claim to relief for 1997/98 is 31 January 2004. If you think that you or your client can make such a claim, you should write to Savings and Pensions Schemes (SPS), Team 1 Repayments, 3rd Floor, St John's House, Merton Road, Bootle, Merseyside, L69 9BB with the name of the insurer, policy number and other relevant details.

Qualifying policies

Another consequence of the previous view was that a policy might exceptionally have ceased to be treated as a qualifying policy because of a change of life assured on divorce, whether or not LAPR was previously given. This is only likely to be the case when the change of life assured took place with less than ten years to run to the maturity of the policy. If you think that this may apply to you or your client, you should contact the insurer, whether or not it has already been made aware of the facts, to tell it about the order or ratification of an agreement issued by the divorce court. This will enable the insurer to update its records and administer the policy as a qualifying policy in future where that would be appropriate.

Capital Gains Tax ('CGT')

In the majority of cases there are no CGT implications when a policy or contract is transferred on divorce. This is because

• section 210 Taxation of Chargeable Gains Act ('TCGA') 1992 takes life insurance policies and deferred life annuity contracts, which have not changed hands for actual consideration, outside the scope of CGT
  
• section 237 TCGA 1992 excludes other annuities from CGT
  
• section 204 TCGA 1992 excludes capital redemption policies from CGT.

Finance Act 2003 changed the rules in section 210 TCGA 1992. There is guidance on the new rules in the Capital Gains manual at paragraphs CG69040 to G69071.

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