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It seems that a SIPP is a settlement as opposed to a bare trust under Sch.16, so a property acquiistion by a SIPP is an acquisition by the trustees rather the person(s) entitled to pension benefits.
Does the making of contributions in cash or kind, by such a person, turn that person into a settlor, for the purposes of S839 ICTA ’88? S620(1) ITTOIA 2005 seems to say yes to thatr.
If so and if the person is one of the trustees of the SIPP, the person and the SIPP trustees are connected for S108 FA 2003 purposes.
But presumably not connected if neither the person nor anyone connected with him/her is appointed a a SIPP trustee.
If that’s right, presumably it will make sense for SIPP “owners” to avoid becoming a trustee of any property assets acquired by the SIPP.
Or am I completely mising apoint?Dominic CrillyGuest
If the person is a settlor and the SIPP is a settlement then s1122(6) CTA2010 implies that the settlement trustees (in their capacity as such) are connected with the person regardless of the identity of the trustees concerned, and this applies for s108(1) FA2003 (arguably – see subsection 1A – there appears to be a drafting error here which has crept in following the enactment of the Scotland Act 2012, and which might be thought to limit the applicability of s1122 to subsection 1A alone, though I suspect a court would disagree and would apply s1122 to subsection 1 too as originally intended) .
But is the SIPP a “settlement” within the meaning of s620 ITTOIA2005 (which is required for s1122 CTA2010 purposes by virtue of s1123(1) CTA210)? HMRC seem to think not. In their Capital Gains Tax Manual at CG14596 they state “It is considered that for the purposes of income tax a pension fund, certainly an approved one, is not a settlement, because of the absence of bounty…Accordingly transfers to pension funds are not connected persons transactions”. If they hold that view for IT and CGT they can hardly argue against it when, as here, s620 ITTOIA2005 is in point.
Or are we meant to ignore s1123(1) CTA2010 and therefore s620 ITTOIA2005 because they contradict para1(1)Sch16 FA2003?