Section 169D: Exceptions to sections 169B and 169C, Taxation of Chargeable Gains Act 1992

Sections 169B and 169C shall not apply in relation to a disposal to the trustees of a settlement in a year of assessment if the trustees have elected, or could have elected, that section 508 of ITA 2007 (trustees' election in respect of income arising from heritage maintenance property) shall have effect in the case of—

the settlement, or

any part of the settlement,

in relation to that year of assessment.

Sections 169B and 169C shall not apply in relation to a disposal to the trustees of a settlement if the following conditions are satisfied.

The first condition is that, immediately after the making of the disposal, the settled property is held on trusts which secure that, during the lifetime of a disabled person—

if any of the property is applied for the benefit of a beneficiary, it is applied for the disabled person's benefit, and

either—

the disabled person is entitled to all of the income (if there is any) arising from any of the property, or

if any such income is applied for the benefit of a beneficiary, it is applied for the disabled person's benefit.

The second condition is that if, immediately after the making of the disposal, one or more settlors is an interested settlor, each such settlor must at that time be a disabled beneficiary.

Where the income arising from the settled property is held on trusts of the kind described in section 33 of the Trustee Act 1925 (protective trusts), subsection (3) has effect as if the reference to the lifetime of a disabled person were a reference to the period during which the income is held on trust for the disabled person.

The trusts on which the settled property is held are not to be treated as falling outside subsection (3) by reason only of—

the trustees' having powers that enable them to apply in any tax year otherwise than for the benefit of the disabled person amounts (whether consisting of income or capital, or both) not exceeding the annual limit,

the trustees' having the powers conferred by section 32 of the Trustee Act 1925 (powers of advancement),

the trustees' having those powers but free from, or subject to a less restrictive limitation than, the limitation imposed by proviso (a) of subsection (1) of that section,

the trustees' having the powers conferred by section 33 of the Trustee Act (Northern Ireland) 1958 (corresponding provision for Northern Ireland),

the trustees' having those powers but free from, or subject to a less restrictive limitation than, the limitation imposed by subsection (1)(a) of that section, or

the trustees' having powers to the like effect as the powers mentioned in any of paragraphs (b) to (e).

For the purposes of this section, the "annual limit" for a tax year is whichever is the lower of the following amounts—

£3,000, and

3% of the amount that is the maximum value of the settled property during the tax year in question.

The Treasury may by order—

specify circumstances in which subsection (4B)(a) is, or is not, to apply in relation to a trust, and

amend the definition of "the annual limit" in subsection (4C).

An order under subsection (4D) may—

make different provision for different cases, and

contain transitional and saving provision.

A statutory instrument containing an order under subsection (4D) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the House of Commons.

For the purposes of subsection (4) above a settlor is an "interested settlor" in relation to a settlement if—

he has an interest in the settlement, or

an arrangement subsists under which such an interest will or may be acquired by him;

and for this purpose, the references to an individual's spouse or civil partner in section 169F(2) and (3) and to an individual's dependent child in section 169F(2A) shall be disregarded.

In subsection (4) above "disabled beneficiary", in relation to a settlement, means a disabled person who—

is a beneficiary under the settlement, or

would be such a beneficiary if he had the interest in the settlement by virtue of which subsection (5)(b) above applies in relation to him.

In this section "disabled person" has the meaning given by Schedule 1A to the Finance Act 2005.

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The references in subsection (3) above to the lifetime of a person shall, where the income from the settled property is held for his benefit on trusts of the kind described in section 33 of the Trustee Act 1925 (protective trusts), be construed as references to the period during which the income is held on trust for him.

Section 169D: Exceptions to sections 169B and 169C

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