INTM600360 - Transfer of assets abroad: General conditions: Person abroad

The Interpretation Act 1978 indicates that ‘person’ includes a body of persons corporate or unincorporated. Therefore, a person abroad could, for example, be an individual, a body of trustees or a company. Additional comments on this are at INTM600380.

Individual

In the case of an individual, for the purpose of these provisions ‘person abroad’ means an individual who is resident or domiciled outside the UK.

Company

From 6 April 2012, a company is only a person abroad if it is resident outside the UK.

Before 6 April 2012, a company incorporated outside the UK, whether resident outside the UK or not, was a person abroad.

Other entities

Whether an entity established outside the UK is a ‘person’ must be discerned from the facts, having regard to the general or commercial law of the jurisdiction in which the entity is established as well as the internal constitution of the entity. How it is regarded for tax purposes in any other country is not likely to be relevant in this context.

The position of an ‘entity’ can perhaps be illustrated by an example.

In the UK, a partnership - although formed under law - is not considered to have an independent personality or status apart from its members and so is not regarded as a person. However, the members of a partnership may be persons. In jurisdictions that follow English law, a partnership formed in that jurisdiction is likely to be viewed in a similar way. But in some jurisdictions a partnership formed under the law of that country may be regarded as having legal standing or personality independent of its members, in the way that an incorporated company does and so in that instance the partnership may be a ‘person’ for these purposes.

Note

There are certain specified persons who, although they may not actually be resident outside the UK, are nevertheless regarded as a person abroad for the purposes of this legislation. These are listed at ITA07/S718 and include:

  • trustees of certain settlements treated as non-UK resident under the residence of trustees’ provisions at ITA07/S475(3), and
  • certain personal representatives of a deceased person who are treated as non-UK resident under the residence of personal representatives’ provisions at ITA07/S834(4).