TSEM9630 - Ownership and income tax: implied trust: resulting trust - counter-presumptions
The presumption of a resulting trust can be ‘rebutted’ (refuted, displaced) by a ‘counter-presumption’, such as any of the following.
Gift or loan
The presumption of a resulting trust can be rebutted if there is evidence that a contribution is intended to be a gift or a loan, so that there was no intention of the contributor acquiring beneficial interest in the property. In example b) in TSEM9620, if there is evidence that B’s contribution of £50,000 was intended as a gift or a loan to A, the presumption that the property is to be held in shares is rebutted, and A is the sole beneficial owner. A is taxable on all the income.
The presumption of a resulting trust can be rebutted if there are other factors which show that a contributor did not intend to take an interest in the property. In example b) in TSEM9620, if there is evidence that B did not intend to take an interest in the property, the presumption that the property is to be held in shares is rebutted, and A is the sole beneficial owner. A is taxable on all the income.
The presumption of resulting trust can be rebutted if there is an express trust (including oral). For example, A provides all the funds for a property which she puts into the joint names of herself and her eldest son B. If there is no evidence to the contrary, there is a resulting trust for A - she is beneficial owner of the property, while A and B are merely legal owners. But if A expressly declares ‘the property belongs half to me and half to my son B during my life time, and the whole of the property is to go to my son B on my death’, then during her lifetime, there is an express trust in which A and her son B are tenants in common - see TSEM9220.
Presumption of advancement
The ‘presumption of advancement’ (soon to be abolished - section 199(1) Equality Act 2010) applies to certain purchases or contributions, mainly by father for child, and by husband for wife. The presumption may also apply on purchases by mother for child especially if the mother is the sole parent. The presumption of advancement does not apply where a wife provided the money for property for her husband.
The ‘advancement’ is the purchase or contribution. The ‘presumption’ is that the husband/father/mother intended the advancement to be a gift.
In the case of bank accounts, the presumption is that the wife or child would get the money in the account on the death of the husband or parent. But until death the beneficial ownership stays with the person who provided the money, and the wife or child is not entitled to any interest accruing before the provider’s death.
The abolition of the presumption of advancement does not affect any transfer made before it comes into force. If you need further advice on this subject, contact HMRC Trusts & Estates Technical Edinburgh.
If there is evidence of a constructive trust - see TSEM9700.