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HMRC internal manual

Trusts, Settlements and Estates Manual

Ownership and income tax: implied trust: constructive trust - introduction

The term ‘constructive’ derives from ‘construe’. A ‘constructive’ trust is imposed by law in certain circumstances that the law ‘construes’ (interprets) as requiring the legal owner of property in good conscience not to retain all beneficial interest in it.

The terms ‘constructive trust’ and ‘constructive trustee’ can apply in various circumstances, for example in the non-tax context of the ownership of homes by married couples or co-habitants. It can also apply in the tax context of an unlawful dividend where the shareholder receiving the dividend holds it as ‘constructive trustee’ for the company - see CTM20090. This guidance is not concerned with those contexts.

A constructive trust in the context of this guidance is where there is an alleged agreement or ‘common intention’ that the parties should share beneficial ownership of the property in some way that differs from the legal ownership or from the normal presumption of resulting trust, with the result that the income tax liability is not entirely on the legal owner. The taxpayer may refer to a ‘common intention constructive trust’.

For example, A has legal ownership of property, but claims that A and B have an agreement that the beneficial ownership is to be shared 50/50. Or A has provided all the funds, but claims there is an agreement that the property is to be shared between A and B.

In particular, a constructive trust claim may arise where someone claims an interest in land and buildings but there is no evidence in writing of the creation of a trust to satisfy S53(1)(b) Law of Property Act 1925. S53(2) of the Act removes the writing requirement for resulting, constructive and implied trusts (TSEM9914).

Taxpayers are less likely to claim ‘constructive trust’ in the context of other types of property (where S53 does not apply). That is because for personal property a trust does not have to be in writing. But for real property (land and buildings) if a trust is not in writing, they need to establish a constructive trust, and part of that requires them to prove detriment (TSEM9730), which is an additional hurdle.

The concept of constructive trusts is much more complex than that of resulting trusts.

Sections TSEM9710-9750 provide guidance as background to understanding and challenging ‘constructive trust’ claims in the income tax context.