Inheritance tax - Anti-avoidance provisions

Learning Outcomes

After studying this article, you will be able to identify and explain the main anti-avoidance provisions relevant to Inheritance Tax (IHT) in England and Wales. You will understand how the General Anti-Abuse Rule (GAAR), Business Property Relief (BPR) restrictions, and Gifts with Reservation of Benefit (GWR) rules operate to prevent tax avoidance. You will be able to apply these principles to SQE1-style scenarios and recognise common pitfalls.

SQE1 Syllabus

For SQE1, you are required to understand the anti-avoidance provisions that apply to Inheritance Tax. Focus your revision on:

  • The scope and application of the General Anti-Abuse Rule (GAAR) to IHT arrangements
  • The qualifying conditions and anti-avoidance restrictions for Business Property Relief (BPR)
  • The operation and effect of Gifts with Reservation of Benefit (GWR) rules
  • The interaction between anti-avoidance provisions and estate planning
  • The impact of recent case law and legislative developments on IHT anti-avoidance

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the purpose of the General Anti-Abuse Rule (GAAR) in relation to Inheritance Tax?
  2. How do the Gifts with Reservation of Benefit (GWR) rules affect the IHT treatment of lifetime gifts?
  3. Name two anti-avoidance restrictions that can prevent Business Property Relief (BPR) from applying.
  4. True or false? Paying full market rent after gifting a property can avoid the GWR rules.

Introduction

Inheritance Tax (IHT) anti-avoidance provisions are designed to prevent individuals from using artificial arrangements to reduce or eliminate their IHT liability. These rules ensure that tax is charged as intended by Parliament and that reliefs, such as Business Property Relief (BPR), are not abused. The main statutory mechanisms include the General Anti-Abuse Rule (GAAR), the Gifts with Reservation of Benefit (GWR) rules, and specific anti-avoidance restrictions within the BPR regime.

The General Anti-Abuse Rule (GAAR)

GAAR is a statutory rule that allows HMRC to counteract tax advantages arising from arrangements that are considered abusive. It applies to a range of taxes, including IHT.

Key Term: General Anti-Abuse Rule (GAAR)
A statutory rule enabling HMRC to deny tax advantages from arrangements that cannot reasonably be regarded as a reasonable course of action, targeting abusive tax avoidance.

GAAR applies where arrangements are entered into with the main purpose, or one of the main purposes, of obtaining a tax advantage, and the arrangements are abusive. The test is whether the arrangement cannot reasonably be regarded as a reasonable course of action in relation to the relevant tax provisions.

The Double Reasonableness Test

The GAAR uses a "double reasonableness" test: would a reasonable person consider that the arrangement cannot reasonably be regarded as a reasonable course of action? If so, HMRC may counteract the tax advantage.

Key Term: Double Reasonableness Test
The test under GAAR that asks whether an arrangement cannot reasonably be regarded as a reasonable course of action, judged objectively.

GAAR Advisory Panel

Before counteracting an arrangement under GAAR, HMRC must seek the opinion of the GAAR Advisory Panel, which issues a non-binding opinion on whether the arrangement is abusive.

Key Term: GAAR Advisory Panel
An independent panel that provides opinions on whether arrangements are abusive under GAAR, guiding HMRC's application of the rule.

Practical Example

Worked Example 1.1

A transfers assets into a trust but retains the power to benefit from the trust income. HMRC reviews the arrangement and considers whether it is abusive under GAAR.

Answer: If the main purpose is to avoid IHT and the arrangement cannot reasonably be regarded as a reasonable use of the legislation, HMRC may apply GAAR to deny the tax advantage.

Gifts with Reservation of Benefit (GWR)

The GWR rules prevent individuals from making gifts but continuing to benefit from the gifted property, thereby removing it from their estate for IHT purposes while still enjoying its use.

Key Term: Gift with Reservation of Benefit (GWR)
A gift where the donor retains some benefit or enjoyment of the property, causing the asset to remain part of their estate for IHT.

If a person gives away an asset but continues to use or benefit from it (e.g., gifting a house but living in it rent-free), the asset is treated as remaining in their estate for IHT.

Avoiding GWR

A GWR can be avoided if the donor pays full market rent for continued use of the asset after the gift.

Worked Example 1.2

B gifts her home to her daughter but continues to live there without paying rent. On B's death, is the house excluded from her estate for IHT?

Answer: No. The house is treated as part of B's estate under the GWR rules, as she retained a benefit.

Exam Warning

If the donor pays less than full market rent for continued use, the GWR rules will still apply. Only full market rent, paid regularly, will prevent the reservation of benefit.

Business Property Relief (BPR) – Anti-Avoidance Restrictions

BPR is a relief that reduces or eliminates IHT on transfers of qualifying business assets. However, anti-avoidance provisions restrict relief in certain situations.

Key Term: Business Property Relief (BPR)
A relief from IHT for transfers of qualifying business assets, subject to strict conditions and anti-avoidance rules.

Qualifying Conditions

To claim BPR, the business must be a trading business (not mainly investment), and the asset must have been owned for at least two years before transfer.

Anti-Avoidance Restrictions

Key anti-avoidance provisions include:

  • Excepted Assets: No BPR is available for assets not used wholly or mainly for business purposes in the two years before transfer.
  • Binding Contracts for Sale: If there is a binding contract to sell the business at the time of death or transfer, BPR is denied.
  • Associated Operations: Transactions designed to artificially secure BPR are disregarded.

Key Term: Excepted Asset
An asset owned by a business but not used for business purposes in the two years before transfer, excluded from BPR.

Worked Example 1.3

C owns shares in a trading company and dies. The company holds a portfolio of investments not used in the business. Can BPR be claimed on the full value of the shares?

Answer: No. The value attributable to the investment portfolio is an excepted asset and does not qualify for BPR.

Revision Tip

When advising on BPR, always check for excepted assets and binding sale contracts, as these are common reasons for denial of relief.

Summary

Provision/RuleMain Effect
GAARAllows HMRC to counteract abusive tax avoidance arrangements
GWRKeeps gifted assets in the estate if the donor retains a benefit
BPR Anti-AvoidanceDenies relief for excepted assets, binding sale contracts, and artificial arrangements

Key Point Checklist

This article has covered the following key knowledge points:

  • The General Anti-Abuse Rule (GAAR) applies to abusive IHT avoidance arrangements, using a double reasonableness test.
  • Gifts with Reservation of Benefit (GWR) rules keep assets in the estate for IHT if the donor retains a benefit.
  • Business Property Relief (BPR) is denied for excepted assets, binding sale contracts, and artificial arrangements.
  • Paying full market rent after a gift can prevent GWR, but only if the rent is actually paid.
  • The GAAR Advisory Panel provides opinions on whether arrangements are abusive.
  • Always check for anti-avoidance restrictions before advising on IHT reliefs.

Key Terms and Concepts

  • General Anti-Abuse Rule (GAAR)
  • Double Reasonableness Test
  • GAAR Advisory Panel
  • Gift with Reservation of Benefit (GWR)
  • Business Property Relief (BPR)
  • Excepted Asset
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