Transfer of assets: husband and wife or civil partners: jointly held assets
Whether the legal title to an asset is held by one or both of a married couple or by one or both of the civil partners within a civil partnership, the beneficial ownership of that asset is a question of fact. If you need to decide who is chargeable to Capital Gains Tax on the disposal of an asset by a husband or wife or by a civil partner you should consider the evidence available to determine
- which of them is the beneficial owner,
- if both of them have a beneficial interest in the asset, what share each of them has.
You may need to consider
- whether Form 17 has been submitted, see below
- who provided the cost price and received the disposal proceeds, see CG22023
- whether the asset was the couple’s home, see CG22023.
If the beneficial ownership of an asset is divided other than equally between the couple and the split of the beneficial ownership of both the asset and the income from it is identical, the couple can make a declaration under ICTA88/S282B on form 17 stating what that split is.
If such a declaration has been made you should treat it as evidence of the existence of an express agreement concerning the ownership of the asset and you should follow that split in assessing the gains on the disposal of that asset.
A couple cannot make a declaration where the split of beneficial ownership of the asset and of the income from it differ. Nor do they have to make a declaration even if they are entitled to. So you should not take the absence of a declaration as being in itself evidence that the beneficial ownership is split evenly. However, you should follow the advice below if there is no declaration and no claim is made that the beneficial ownership is unevenly divided.
If one spouse or civil partner paid all of the cost of the asset and it is held in the name of that spouse or civil partner alone it may be assumed, in the absence of evidence to the contrary, that he or she is the sole beneficial owner. This assumption may be wrong if the asset was acquired as a gift for the other spouse or civil partner, see CG34400.
Similarly, if the disposal proceeds are retained by one spouse or civil partner it may be evidence that he or she was the sole beneficial owner of the asset which was disposed of.
The Courts have substantial powers to recognise the equitable interest of a spouse or civil partner in the matrimonial or civil partnership home to the extent of their contribution to providing that home. You should not overlook the possibility that a spouse or civil partner has an equitable interest in a home to which he or she has no legal title. This is covered in more detail at CG65310+.
If no factual evidence is available to determine each spouse’s or civil partner’s beneficial interest in an asset you should
- assess the spouse or civil partner with legal title,
- if they have joint legal title, assess each of them as a holder of a half interest in the asset.