Abstract This article examines the newly released Charity Commission guidance, known simply as the “CC14”. The CC14 provides investment guidance to the charity sector and has recently been renewed following the case of Butler-Sloss & Ors v The Charity Commission for England and Wales & Anor [2022] EWHC 974 (Ch). In Butler-Sloss, the High Court was asked to determine whether charitable trustees could deploy an investment plan that aligned with the Paris Agreement and excluded investments that contributed to climate change. Mr Michael Green J ruled that such an “ethical” investment plan was lawful. Following Butler-Sloss, the CC14’s use of “social investment” may indeed encourage “greener” investment opportunities amongst charitable trustees, in that the advice attempts to bring charitable trustee investment more in line with modern investment practices. However, this work opines that the guidance could be actively encouraging environmentally inspired investments at the expense of the sacrosanct fiduciary duty of investment.
{"title":"CC14 guidance update: greener investments, greater uncertainty?","authors":"Lloyd Brown","doi":"10.1093/tandt/ttad085","DOIUrl":"https://doi.org/10.1093/tandt/ttad085","url":null,"abstract":"Abstract This article examines the newly released Charity Commission guidance, known simply as the “CC14”. The CC14 provides investment guidance to the charity sector and has recently been renewed following the case of Butler-Sloss & Ors v The Charity Commission for England and Wales & Anor [2022] EWHC 974 (Ch). In Butler-Sloss, the High Court was asked to determine whether charitable trustees could deploy an investment plan that aligned with the Paris Agreement and excluded investments that contributed to climate change. Mr Michael Green J ruled that such an “ethical” investment plan was lawful. Following Butler-Sloss, the CC14’s use of “social investment” may indeed encourage “greener” investment opportunities amongst charitable trustees, in that the advice attempts to bring charitable trustee investment more in line with modern investment practices. However, this work opines that the guidance could be actively encouraging environmentally inspired investments at the expense of the sacrosanct fiduciary duty of investment.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"79 23","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134900867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The reason taxpayers make arrangements is because they are able to suit themselves, as well as their and business and investment purposes. Such arrangements are as many and varied as there are taxpayers. It is impossible for a legislator, especially in relation to taxation, which by its very nature is a by-product of being free to so arrange, to set out, or prescribe in detail what is and what is not acceptable, except in the clearest of cases. The use of trusts causes the Commissioner of Taxation some concern and the ATO arguably starts with the position that those using trusts are doing so to lessen their taxation burden. Trusts, however, are used for a variety of personal and commercial purposes. It is the case that taxation considerations are increasingly considered to be a part of the equation. The difficulties around the application of section 100A are causing no little consternation for taxpayers and their advisors, not in the least because the Australian Revenue authorities have taken considerable time to issue their view, while at the same time pursuing taxpayers for alleged breaches of the provision.
{"title":"Australian tax arrangements for trusts: Section 100A of the <i>Income Tax Assessment Act (1936)</i> Cth","authors":"David Morrison","doi":"10.1093/tandt/ttad077","DOIUrl":"https://doi.org/10.1093/tandt/ttad077","url":null,"abstract":"Abstract The reason taxpayers make arrangements is because they are able to suit themselves, as well as their and business and investment purposes. Such arrangements are as many and varied as there are taxpayers. It is impossible for a legislator, especially in relation to taxation, which by its very nature is a by-product of being free to so arrange, to set out, or prescribe in detail what is and what is not acceptable, except in the clearest of cases. The use of trusts causes the Commissioner of Taxation some concern and the ATO arguably starts with the position that those using trusts are doing so to lessen their taxation burden. Trusts, however, are used for a variety of personal and commercial purposes. It is the case that taxation considerations are increasingly considered to be a part of the equation. The difficulties around the application of section 100A are causing no little consternation for taxpayers and their advisors, not in the least because the Australian Revenue authorities have taken considerable time to issue their view, while at the same time pursuing taxpayers for alleged breaches of the provision.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" 7","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135291663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article arises from a complex family dispute and some difficulty in determining the full facts underpinning the complaint. Information given by the parties grudgingly, partially, and in very poor order, caused the primary judge in the penultimate case considered herein to no doubt reluctantly prefer the daughter’s version of events over that of her father. The primary concern is whether or not the father loaned money to his daughter in the purchase of a house in her own name, giving rise to a concomitant responsibility on her part to repay the said loan, or whether, because of the nature of the arrangement, monies advanced by the father might instead be interpreted consistent with an intention on his part to have a beneficial interest in the property.
{"title":"Fathers, daughters, and matters of trust","authors":"David Morrison","doi":"10.1093/tandt/ttad081","DOIUrl":"https://doi.org/10.1093/tandt/ttad081","url":null,"abstract":"Abstract This article arises from a complex family dispute and some difficulty in determining the full facts underpinning the complaint. Information given by the parties grudgingly, partially, and in very poor order, caused the primary judge in the penultimate case considered herein to no doubt reluctantly prefer the daughter’s version of events over that of her father. The primary concern is whether or not the father loaned money to his daughter in the purchase of a house in her own name, giving rise to a concomitant responsibility on her part to repay the said loan, or whether, because of the nature of the arrangement, monies advanced by the father might instead be interpreted consistent with an intention on his part to have a beneficial interest in the property.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"33 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135430169","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Following the House of Lords’ decision in White v White, the concept of ‘equality’ has made asset computation and division following divorce, particularly in ‘big-money’ cases, more extensive. This article examines whether discretionary trusts are vulnerable to interference by the Family Court during ancillary relief proceedings through considering three approaches. First, by varying the trust settlement under section 24(1)(c) of the Matrimonial Causes Act 1973 (‘MCA’). Second, through the ‘resource’ approach under section 25(2)(a) MCA. Third, by relying on the sham doctrine. It accordingly identifies practical considerations for trustees and settlors to ensure that their trust assets remain intact following divorce proceedings.
{"title":"An analysis of the risks that arise for discretionary trust settlements in the event of a divorce: to what extent does the Family Court’s asset division approach undermine discretionary trusts?","authors":"Nicole Chan","doi":"10.1093/tandt/ttad078","DOIUrl":"https://doi.org/10.1093/tandt/ttad078","url":null,"abstract":"Abstract Following the House of Lords’ decision in White v White, the concept of ‘equality’ has made asset computation and division following divorce, particularly in ‘big-money’ cases, more extensive. This article examines whether discretionary trusts are vulnerable to interference by the Family Court during ancillary relief proceedings through considering three approaches. First, by varying the trust settlement under section 24(1)(c) of the Matrimonial Causes Act 1973 (‘MCA’). Second, through the ‘resource’ approach under section 25(2)(a) MCA. Third, by relying on the sham doctrine. It accordingly identifies practical considerations for trustees and settlors to ensure that their trust assets remain intact following divorce proceedings.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"12 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136376829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This case note discusses the implications of Lord Sumption’s judgment in Pt Asuransi Tugu Pratama Indonesia TBK v Citibank N.A. [2023] HKCFA 3 on the rights of a corporate customer against a bank that has debited its account upon the instructions of the customer’s delinquent officers. It proposes a new line of defences available to banks, namely the Greenwood estoppel and the unavailability of selective ratification to the customers. In particular, under the Greenwood estoppel, the issue of whether the knowledge of the wrongdoing agents shall be attributed to the corporate customer is also addressed.
本案例摘要讨论了Sumption法官在“Asuransi Tugu Pratama Indonesia TBK诉Citibank N.A. [2023] HKCFA 3”一案中对公司客户对根据客户的拖欠人员指示借记其账户的银行的权利的判决的影响。它为银行提出了一条新的防御线，即格林伍德禁止反悔原则和对客户的选择性批准不可用性。特别地，在Greenwood禁止反悔原则下，是否应将不法行为代理人的知情归属于公司客户的问题也得到了解决。
{"title":"Bank payments on instructions of delinquent agents: a paradigm shift","authors":"Christy Suen","doi":"10.1093/tandt/ttad082","DOIUrl":"https://doi.org/10.1093/tandt/ttad082","url":null,"abstract":"Abstract This case note discusses the implications of Lord Sumption’s judgment in Pt Asuransi Tugu Pratama Indonesia TBK v Citibank N.A. [2023] HKCFA 3 on the rights of a corporate customer against a bank that has debited its account upon the instructions of the customer’s delinquent officers. It proposes a new line of defences available to banks, namely the Greenwood estoppel and the unavailability of selective ratification to the customers. In particular, under the Greenwood estoppel, the issue of whether the knowledge of the wrongdoing agents shall be attributed to the corporate customer is also addressed.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"66 15","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135218579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Does a beneficiary with a life interest in a particular property under a will have an enforceable right to occupy that property in circumstances where a third party voluntarily pays an estate debt that could only otherwise have been satisfied by the executors selling the property? The recent decision in Hall v HMRC [2023] UKFTT 32 (TC) held that no such right existed and, as a result, the life-interest beneficiary did not have an ‘interest in possession’ for inheritance tax purposes. This article questions that result by arguing that the third-party payments discharged the estate debt and granted the life-interest beneficiary an enforceable right to occupy the property following the administration of the estate such that an ‘interest in possession’ must arise.
摘要在遗嘱中对某一特定财产享有终身权益的受益人，在第三方自愿支付只能通过遗嘱执行人出售该财产来偿还的遗产债务的情况下，是否具有占有该财产的强制执行权利?最近Hall v HMRC [2023] UKFTT 32 (TC)一案的裁决认为，不存在这样的权利，因此，终身权益受益人在遗产税方面没有“占有权益”。本文对这一结果提出质疑，认为第三方付款解除了遗产债务，并赋予终身权益受益人在遗产管理后占有财产的可执行权利，因此必须产生“占有权益”。
{"title":"Interests in possession: a critique of Hall <scp>v</scp> HMRC","authors":"James Anson-Holland","doi":"10.1093/tandt/ttad079","DOIUrl":"https://doi.org/10.1093/tandt/ttad079","url":null,"abstract":"Abstract Does a beneficiary with a life interest in a particular property under a will have an enforceable right to occupy that property in circumstances where a third party voluntarily pays an estate debt that could only otherwise have been satisfied by the executors selling the property? The recent decision in Hall v HMRC [2023] UKFTT 32 (TC) held that no such right existed and, as a result, the life-interest beneficiary did not have an ‘interest in possession’ for inheritance tax purposes. This article questions that result by arguing that the third-party payments discharged the estate debt and granted the life-interest beneficiary an enforceable right to occupy the property following the administration of the estate such that an ‘interest in possession’ must arise.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"36 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134973490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The law of tracing is an area of law that develops rapidly. This article analyses the area of law from the perspective of three payment methods (cash, a letter of credit, and overdrawn bank account) in a commercial context. This article extracts two prepositions that clarify the right to conduct a tracing exercise and advocates further exploration of the law of tracing.
{"title":"Three payment methods and the law of tracing","authors":"Conrad Chong","doi":"10.1093/tandt/ttad073","DOIUrl":"https://doi.org/10.1093/tandt/ttad073","url":null,"abstract":"Abstract The law of tracing is an area of law that develops rapidly. This article analyses the area of law from the perspective of three payment methods (cash, a letter of credit, and overdrawn bank account) in a commercial context. This article extracts two prepositions that clarify the right to conduct a tracing exercise and advocates further exploration of the law of tracing.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"105 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134948332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In handing down its judgment in the matter of Nina Naustdal v TKC Corporate Services NV and two others on 23 December 2022, the Royal Court of Guernsey found that the First Defendant, a professional trustee, had acted in dishonest breach of trust. At the heart of the judgment was that the principal asset of the Trust had been transferred out of trust to benefit a stranger to the trust, constituting a fraud on a power. Amongst the various other relief that it granted, the Court declared that the purported transfer of trust property by the trustee was void. Furthermore, it ordered that the trustee be deprived of its indemnity for any legal fees and disbursements in connection with the proceedings and to repay any sums that had been taken from the trust.
{"title":"Guernsey Royal Court finds a dishonest breach of trust: acting ‘en bon père de famille’","authors":"Sandie Lyne, Gareth Parr, Victoria Randall","doi":"10.1093/tandt/ttad066","DOIUrl":"https://doi.org/10.1093/tandt/ttad066","url":null,"abstract":"Abstract In handing down its judgment in the matter of Nina Naustdal v TKC Corporate Services NV and two others on 23 December 2022, the Royal Court of Guernsey found that the First Defendant, a professional trustee, had acted in dishonest breach of trust. At the heart of the judgment was that the principal asset of the Trust had been transferred out of trust to benefit a stranger to the trust, constituting a fraud on a power. Amongst the various other relief that it granted, the Court declared that the purported transfer of trust property by the trustee was void. Furthermore, it ordered that the trustee be deprived of its indemnity for any legal fees and disbursements in connection with the proceedings and to repay any sums that had been taken from the trust.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":"302 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135549265","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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