Differences in tax regimes between Scotland & England may emerge

Using among other comparisons, the tricky subject of Inheritance Tax & Wills, the Scotsman reports on differences or loopholes in 'cross border taxes' which may emerge north of the border ...

Watch for loopholes in cross-border tax

By BILL PAGAN AND FIONA MCDONALD

INHERITANCE tax can be a complex subject and, when applied to the specialities of Scots law, it becomes even more intricate.

The establishment of the Scottish Parliament and its subsequent legislation has extended the potential for differing tax treatment between Scotland and the rest of the UK.

Although the Scottish Parliament has no influence over UK tax legislation (other than to raise or reduce the basic rate of income tax by 3 per cent), it can legislate on general law, which in turn can have an indirect impact on taxpayers north of the border. Examples include the law of the land, the law of families and the definition of charity.

The constitutional principle is that UK tax law should be applied on both sides of the border in an equivalent manner. However, its interpretation in Scotland is not the same as in England and Wales.

For example, the different land laws mean that although a buyer can purchase a farm in England and a farm in Scotland on the same day, they will be treated differently for inheritance tax purposes, as the date of acquisition in Scotland is deemed to be the date of registration of the title, whereas in England and Wales the date of settlement is used.

And as agricultural relief from inheritance tax is available to owners following the second anniversary (or in some cases the seventh anniversary) of ownership, the differing legal acquisition dates have an impact on when inheritance tax relief becomes available.

Agricultural relief significantly reduces the amount of inheritance tax due, and can often eliminate it altogether. It is interesting to note that many wealthy investors choose to purchase land in order to protect their estate from inheritance tax when they die. Research shows that 36 per cent of farm buyers in 2007 cited inheritance tax planning as a reason for their purchase.

Scots law also has different principles for wills. In Scotland, neither marriage, divorce, entering or dissolving a civil partnership, nor the birth of a child revokes a will, but the rights in Scots law of spouses, civil partners and children have inheritance tax implications.

Additionally, following the Family Law (Scotland) Act 2006 cohabitees have a right, within six months of a death, to make a claim on an estate where there is no will. As the inheritance tax exemption for spouses and civil partners does not extend to cohabitees there may be inheritance tax consequences.

Charities law provides another robust example of the distinct workings between Scots law and inheritance tax as it generates major issues. The Charities & Trustee Investment (Scotland) Act 2005 defines a list of Scottish charitable purposes (these are different, though similar, to those defined in English and Welsh law).

However, to be guaranteed the usual tax exemptions (except for rates, which are a devolved matter), Scottish charities must fall within the charitable purposes as defined by English and Welsh law, not Scots law.

As a result, there may be charities that fall under the remit of the Office of the Scottish Charity Regulator, but which do not qualify for the tax exemptions. Gifts or bequests to such charities will therefore be subject to inheritance tax.

Elsewhere, the rules under Scots law for establishing the order of death (for example in a joint accident), or to have someone presumed dead if they have gone missing or been in an accident also vary from those elsewhere in the UK, and extra care should be taken when considering the inheritance tax position.

Charity and succession matters, wills and trusts are just a few of the many intricacies that overlap in the interpretation of Scots law and inheritance tax, and thus result in differing treatments in Scotland than the rest of the UK for inheritance tax purposes.

It is a multifaceted issue that, combined with the activity of the Scottish Parliament, raises serious questions and challenges for the Scottish legal profession.

• Bill Pagan and Fiona McDonald are solicitors at Pagan Osborne. They are the authors of Inheritance Tax In Scotland 2007/08, which provides an overview of how the specialities of Scots Law and the intricacies of inheritance tax overlap.

The full article contains 698 words and appears in The Scotsman newspaper.
Last Updated: 06 January 2008 6:12 PM

Campaigners call for protection of families & beneficiaries in Inheritance law reform proposals

More From A Diary of Injustice in Scotland where Peter Cherbi reports on the Scottish Law Commission's call for reforms to Inheritance Law while critcising the lack of attention to protection for beneficiaries & families against rogue lawyers & executors.

Cherbi presents his own case as one of the more famous examples of poor handling of a will by the legal & accounting professions in Scotland, identifying Borders accountant Norman Howitt and Kelso solicitor Andrew Penman as being the main culprits in the disaster that befell his late father's will, with no resolution to-date and worryingly including details of potential criminality yet to be addressed.

An all too common example of how wills are handled in Scotland, so surely it's time to give protection against such poor behaviour which has dragged the legal profession's reputation into the gutter ...

Scottish Law Commission omit calls for protection from crooked lawyers & executors while recommending Inheritance Law reform

Wives & children of the deceased should be given greater protection against a possible disinheritance by their partners & parents under new proposals to grant greater rights over the current 'laws of succession', reports the Herald newspaper.

The current laws on inheritance & wills are rather antiquated - just like many parts of Scots Law these days sadly, antiquated and not really reflective of life in the 21st Century (although some ex-judges and a few members of the judiciary seem to prefer it that way .. or worse, fight to preserve ancient law with the odd loophole, having to rely on judicial whim to let cases through).

At the moment, dependents have a right to one-third of a deceased parent's 'non heritable', or more commonly referred to "moveable estate" regardless of the terms of a will, whether they are included in it or not.

"Moveable estate' doesn't really include properties, it's more like cash, bank accounts, etc .. but one point on this would be that in several observed cases, lawyers have taken advantage of such incidents by altering the wills of deceased clients to write out family members, and then scooping the remaining properties of the client for themselves or selling them to preferred clients & colleagues .

However, the Scottish Law Commission has strangely missed the most glaring recommendations for overhauling the laws of succession - and those are, stronger regulation & oversight of how wills are handled by the likes of the legal profession & courts, protection for beneficiaries against negligence, corruption & incompetence by crooked lawyers, accountants & other professionals, including protection against crooked executors.

One could ask why the Scottish Law Commission didn't recommend increased protection from the likes of negligent, corrupt & incompetent solicitors & executors ... could it be too many links to the legal profession or perhaps, not enough statutory powers given to them by previous administrations because the legal profession itself doesn't want the SLC to have too much power, much like the position of Scottish Legal Services Ombudsman has been since it was formed from the Law Reform (Misc Provisions) (Scotland) Act 1990

The answer to that may well be that if such protections were put in place, the likes of actions of crooked lawyers such as Andrew Penman, of Stormonth Darling WS, Kelso, and crooked Executors such as the Norman Howitt of Welch & Co, Accountants in the Scottish Borders , wouldn't so frequently take place .. and the legal profession wouldn't be so easily able to milk dead clients assets for furthering their own legal firm's profits & wallets while many families in Scotland get ripped off in an almost daily occurrence from the Scottish legal profession.

Of course, I have the example of what happened to my late father's estate to illustrate what so many in Scotland go through when dealing with crooked lawyers & crooked executors out to ruin an estate for their own personal profit & gain.

Norman Howitt, the Executor of my late father turned up the day after my father died, with a hand written list of 'addittions' to my father's will in Mr Howitt's own favour and of other unspecified relatives & 'unidentified people'. The 'additions' were written in Mr Howitt's own handwriting, and also strangely wrote myself and my mother out of the will - much to the amazement of myself, my mother, my own lawyer, family & friends, and the Police.

Suffice to say the 'amendments', seemingly written after my father's death, and in the Executor's favour, didn't get the time of day but these unsubstantiated handwritten 'amendments' didn't stop Norman Howitt, teaming up with the lawyer crooked lawyer Andrew Penman Andrew Penman to ruin my late father's assets & estate, in their own interests. paying themselves fat fees along the way and making sure no one got anything.

Not content with ruining my late father's estate and trying to write myself and my mother out of my father's will, Norman Howitt then went on to take all my mother's assets too including her bank book & pension book, while Mr Howitt and Mr Penman made sure no one bought the properties of my late father in Jedburgh ... no doubt so they could be sold to a preferential colleague perhaps ...

A severe example of a crooked lawyer & crooked executor one might think ? but in reality a common occurrence which only goes on and on because lawyers regulate complaints against their colleagues via the corrupt Law Society of Scotland, and make sure that when a family of a deceased client complain a crooked lawyer has wiped out their inheritance, nothing is ever done against the offending legal firm or lawyer concerned - and to make sure nothing is done, the family of the deceased client are obstructed to the nth degree by the protectionist Law Society of Scotland and prevented at all costs by the most senior members of the legal profession to obtain legal representation to pursue the likes of crooked lawyers & crooked executors for negligence & compensation for what was done.

So you see - when lawyers & executors rip off a will and a family - nothing gets done, ever - and the lawyers & executors get away with their frauds & rip offs because their professional regulatory bodies, the law, the Police and politicians all take a back seat, seemingly quite content to do so, and safe in the knowledge the many victims are never given a significant public voice calling for reforms.

The dead client is robbed (easy since they are dead), the remaining family & beneficiaries are robbed (easy because nothing can be done about it since lawyers regulate themselves) and executors get away with it too because they cut the crooked lawyer in on the deal ... all the while politicians & the courts stand by doing nothing because of their good friends in the legal profession need to make their fat profits.

Here's another common example of what happens to residual estates of deceased clients, involving the famous Scottish legal firm of Turcan Connell : Law Society of Scotland rejects complaint over estate ruined by huge legal fees

Reform is needed - but the rules & laws governing Executors etc are stuck in the dark ages, with the approval of many in the legal profession it seems because they make money from it in an easy hit against deceased clients and grieving families whom the likes of solicitors, accountants & others easily target for money.

The Scottish Parliament must have it's say on this issue, and people, particularly those who have experienced the full horrors of solicitors & executors mishandling wills should write to their MSP and the Scottish Executive with their experiences, to bring reforms & protections against the mishandling of wills by the law and those professions & executors charged with such duties.

Report from the Herald newspaper to follow :

Shake-up of law on wills aims to protect children

CALUM MacDONALD

NEW PROPOSALS: Parents will no longer be able to cut dependant children out of their will

Parents would no longer be able to disinherit their dependent children by cutting them out of their wills under new proposals which amount to the most radical shake-up of Scotland's inheritance laws in a generation.

Spouses and dependent children would be given greater protection against being disinherited while co-habiting partners would see their rights to make a claim on an estate extended under the proposals.

And in cases where a person dies without leaving a will, surviving spouses should inherit their entire estate, according to the Scottish Law Commission (SLC), which published the proposed reforms yesterday.

Scotland's inheritance laws, otherwise known as the laws of succession, are in need of a radical overhaul to reflect changes in society such as the legal recognition of gay relationships, the increasing number of step-families and divorces, according to the SLC. The report from the SLC deals with two major issues: the position of surviving spouses, civil partners and co-habitants when a person dies without having made a will; and the protection of close relatives from being disinherited.

It says that the current rules governing intestacy, when a person dies without a will, sometimes fail to provide a fair result for surviving partners and therefore should be changed. At present if a person dies and leaves a large estate or a mainly heritable one - in other words one comprising land and buildings - and is survived by a spouse or civil partner but has no children, the spouse will be the major beneficiary.

However, a substantial proportion may go to the dead person's parents, siblings and even the sons and daughters of siblings who died before them. In some circumstances they can inherit more than the spouse.

The SLC proposal is that in this situation the surviving spouse or civil partner should be entitled to the whole estate.

The other major proposal contained within the SLC report deals with close relatives who are disinherited. Under Scots law someone who makes a will is able to disinherit any member of his or her close family by leaving all of their estate to other people.

The SLC said: "There is strong and consistent public support for some protection for spouses, civil partners and issue and dissatisfaction with the existing regime of legal rights applicable to them."

It proposes that in these circumstances spouses and civil partners should be entitled to a quarter of what they would have got had there been no will, and that dependent children should be able to apply to court for maintenance from the estate. The definition of who would qualify as a "dependent" child under the new proposals has still to be decided.

It also recommends that co-habitants be entitled to a share of the estate in these circumstances.

The report also calls for new legislation to prevent a person evading the protections against disinheritance by giving property away before they die instead of leaving it in a will. Currently in Scots law there is nothing to prevent a person doing this.

The SLC proposals were welcomed by academics and legal practitioners alike.

Alan Barr, a partner with Brodies LLP, said: "I think these proposals are entirely reasonable.

"It's not a root and branch removal of the law as it stands, but it's modernising and deals with problems that people have perceived about it.

"There is always a balance to be struck between whether on the one hand you should be able to do exactly what you like with your estate, and on the other whether people should be bound to provide for at least some of their family.

"This is an attempt to change that balance slightly and to simplify what is very complicated law."

Michael Meston, emeritus professor of Scots law at the University of Aberdeen and one of the foremost authorities on the Scots law of succession, said: "The law in this area is undoubtedly in need of improvement.

"These proposals are very welcome and address a much-needed improvement in the law."