TCGA 1992 s.65 – Liability for tax of trustees or personal representatives

[^F250 (1)Subject to subsection (3) below, capital gains tax chargeable in respect of chargeable gains accruing to the trustees of a settlement or capital gains tax due from the personal representatives of a deceased person may be assessed and charged on and in the name of any one or more of the relevant trustees or the relevant personal representatives.^F250]

(2)Subject to section 60 and any other express provision to the contrary, chargeable gains accruing to the trustees of a settlement or to the personal representatives of a deceased person, and capital gains tax chargeable on or in the name of such trustees or personal representatives, shall not be regarded for the purposes of this Act as accruing to, or chargeable on, any other person, nor shall any trustee or personal representative be regarded for the purposes of this Act as an individual.

[^F251 (3) Where section 80 applies as regards the trustees of a settlement (“the migrating trustees”), nothing in subsection (1) above shall enable any person—

(a)who ceased to be a trustee of the settlement before the end of the relevant period, and

(b)who shows that, when he ceased to be a trustee of the settlement, there was no proposal that the trustees might [^F252 cease to be resident^F252] in the United Kingdom,

to be assessed and charged to any capital gains tax which is payable by the migrating trustees by virtue of section 80(2).

(4)In this section—

“the relevant period” has the same meaning as in section 82;
“the relevant trustees”, in relation to any chargeable gains, means the trustees in the year of assessment in which the chargeable gains accrue and any subsequent trustees of the settlement, and “the relevant personal representatives” has a corresponding meaning. ^F251]

Definitions used in section 65 9

tax: and for the purposes of this definition “tax” means capital gains tax, corporation tax or income tax.
Defined in s.16A(2) · see it in the full Act
trustee: (7A) In this section, sections 86A to 96 and Schedule 4C “trustee”, in relation to a settlement in relation to which there would be no trustees apart from this subsection, means any person in whom the settled property or its management is for the time being vested (and a person who is treated as a trustee of the settlement by virtue of this subsection shall be treated as a trustee of the settlement for the purposes of section 69).
Defined in s.97(7A) · see it in the full Act; (b) “trustee”, in relation to a settlement in relation to which there would be no trustees apart from this paragraph, means any person in whom the settled property or its management is for the time being vested.
Defined in s.286(3ZA) · see it in the full Act
settlement: (a) “settlement” has the same meaning as in section 620 of ITTOIA 2005, and
Defined in s.286(3ZA) · see it in the full Act; “settlement” has the meaning given by section 620 of ITTOIA 2005, and
Defined in s.97(7) · see it in the full Act
personal representatives: “personal representatives” has the same meaning as in the Corporation Tax Acts (see section 1119 of CTA 2010) ;
Defined in s.288(1) · see it in the full Act
the individual: 13C (1) The receipt of the replacement value by the original supplier shall be disregarded for the purposes of paragraph 13B above, as it applies in relation to the shares, to the extent to which that receipt has previously been set (under that paragraph) against any receipts of value which are, in consequence, disregarded for the purposes of paragraph 13 above as that paragraph applies in relation to those shares or any other shares subscribed for by the individual in question (“the individual”).
Defined in Sch.5B para.13C(1) · see it in the full Act
the relevant period: (7) In determining “the relevant period” for the purposes of sub-paragraph (2)(d) or (e) or sub-paragraph (5)(c), section 28 (time of disposal under contract) applies with the omission of subsection (2) (postponement of time of disposal in case of conditional contract).
Defined in Sch.7AC para.3(7) · see it in the full Act
the residents: (b) if 2 or more of them are then resident ... in the United Kingdom (“the residents”) it shall be treated as being as many equal capital payments as there are residents and each of them shall be treated as receiving one of the payments.
Defined in s.96(4) · see it in the full Act
resident: “resident” means resident in accordance with the statutory residence test in Part 1 of Schedule 45 to the Finance Act 2013 ;
Defined in s.288(1) · see it in the full Act
year of assessment: “year of assessment” means tax year;
Defined in s.288(1) · see it in the full Act

Cases considering section 65 3

Patricia Ann Keegan v Terence John Keegan & Anor

[2025] EWHC 148 (Ch) · 28 January 2025

Section 65 was relied on, together with section 60, as the statutory basis for treating the capital gain on the estate property as chargeable to the personal representatives rather than the beneficiaries. (see paras [80]-[82])

Mackay v Wesley

[2020] EWHC 1215 (Ch) · 18 May 2020Interprets

Interprets the charging mechanism as permitting capital gains tax chargeable on settlement trustees to be assessed and charged in the name of any one or more relevant trustees. (see para [37]) Interprets “relevant trustees” as including trustees during the year of assessment in which gains accrue and subsequent trustees, supporting the assumed potential liability of the claimant. (see paras [37]-[39])

Jasmine Trustees Ltd & Ors v Wells & Hind (A Firm) & Anor

[2007] EWHC 38 (Ch) · 19 January 2007

Confirms that capital gains tax on gains accruing to trustees of a settlement may be assessed on one or more trustees. The provision fits the scheme under which the actual trustees remain the relevant trustees of the settlement (see paras [37]-[38], [48]). Confirms the separate treatment of trustee liability and individual liability within the capital gains tax scheme. It supports charging by reference to the settlement and its actual trustees (see paras [37]-[38], [48]).

What each judgment says about section 65 is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

F250S. 65(1) substituted (with effect in accordance with s. 103(7) of the amending Act) by Finance Act 1995 (c. 4), s. 114(1)
F251S. 65(3)(4) inserted (with effect in accordance with s. 103(7) of the amending Act) by Finance Act 1995 (c. 4), s. 114(2)
F252Words in s. 65(3)(b) substituted (with effect in accordance with Sch. 46 para. 112 of the amending Act) by Finance Act 2013 (c. 29), Sch. 46 para. 80