INTM600380 - Transfer of assets abroad: General conditions: Person abroad - examples

A person abroad can take many forms, for example an individual, a body of trustees or an incorporated company (INTM600360).

Whether an entity established outside the UK is a ‘person abroad’ is a matter that must be determined from the particular facts, including a consideration of the relevant foreign commercial law under which the entity is formed and the internal constitution of the entity. The approach to be taken and factors likely to need consideration in any instance where there is doubt about whether an entity has the appropriate characteristics of being a person are likely to be similar to those described at INTM180000.

This manual provides an indication of views taken on a number of foreign entities. Broadly speaking, any entity that is seen as fiscally opaque for UK tax is likely to be regarded as a ‘person’ for the purpose of these provisions. Similarly, where an entity is considered fiscally transparent for UK tax, it is likely that it should not be regarded as a ‘person’ for these purposes.

Where an entity is regarded as being a legal person within the law of the territory in which it is established, even though it is not of a form that is immediately recognisable with a UK equivalent, it is likely that it would be accepted as a person abroad for the purpose of these provisions. Two common examples are mentioned below.

The most common forms of foreign entity seen in transfer of assets cases are companies and trusts. A company is a person as is the body of trustees of a trust. Perhaps the next most common form of entity is an Anstalt (Establishment) or Stiftung (Foundation). Generally, we treat an Anstalt like a company, and a Stiftung like a discretionary trust. These are both normally regarded as persons for the purpose of the transfer of assets provisions.