TAXATION OF THE FAMILY

Married couples are subject to a system of independent taxation under which husbands and wives are taxed separately. This can give rise to valuable tax planning opportunities. Furthermore, the tax position of any children is important.

Marriage breakdowns can also have a considerable impact for tax purposes.

We highlight below the main areas of importance where advance planning can help to minimise overall tax liabilities.

It is important that professional advice is sought on specific issues relevant to your personal circumstances.

SETTING THE SCENE 

Married couples Since 1990, independent taxation has meant that husbands and wives are taxed separately on their income and capital gains. The effect is that both have their own allowances, lower and basic rate tax bands for income and capital gains tax purposes and are responsible for their own tax affairs.

Children A child is an independent person for tax purposes and is therefore entitled to a personal allowance and a full lower and basic rate tax band before being taxed at the higher rate. It may be possible to save tax by generating income or capital gains in the children's hands.

Marriage breakdown Separation and divorce can have significant tax implications. In particular, the following areas warrant careful consideration ? current and future tax allowances ? transfers of assets between spouses. 

TAX PLANNING OPPORTUNITIES
 
Income tax allowances and tax bands Everyone is entitled to a basic personal allowance. This allowance cannot however be transferred between spouses.

For taxpayers aged 65 and over on 5 April 2000, a married couple's allowance is available. This is given to the husband, although it is possible, by election, to transfer it to the wife.

In general, married couples should try to arrange their ownership of income producing assets so as to ensure that personal allowances are fully utilised and any higher rate liabilities minimised.

Joint ownership of assets When assets are jointly owned by husband and wife, any income arising is assumed to be shared equally for tax purposes. This applies even where the asset is owned in unequal shares unless an election is made to split the income in proportion to the ownership of the asset.

We can advise on the most appropriate strategy for jointly owned assets so that tax liabilities are minimised.

Capital gains tax (C) Each spouse's C liability is computed by reference to their own disposals of assets and each is entitled to their own annual exemption, currently £7,200 per annum. Gains above this level are charged to tax by treating them as the top slice of income.

Considerable tax savings may be made by ensuring that maximum advantage is taken of annual exemptions, the starting rate of tax (10%) and the lower rate of tax (20%).

This can often be achieved by transferring assets between spouses before sale - a course of action generally having no adverse C or inheritance tax (IHT) implications. Advance planning is vital, and the possible income tax effects of transferring assets should not be overlooked.

Children It may be possible for tax savings to be achieved by the transfer of income producing assets to a child so as to take advantage of the child's personal allowance.

This cannot be done by the parent if the annual income arising is above £100. The income will still be taxed on the parent. However, transfers of income producing assets by others (eg grandparents) will be effective.

Children's tax credit A children's tax credit will be available to some taxpayers from 6 April 2001. Individuals who have one or more children under 16 living with them can claim the children's tax credit. It will take the form of an allowance for which relief is given at 10%. In 2001/02, the amount was originally set at £4,420 @ 10%, ie £442. However, the Chancellor has since announced that the level will be set at £520 for 2001/02.

The credit will gradually be withdrawn where the person claiming it is liable to tax at the higher rate. Such people will lose £1 of tax credit for every £15 of income above the higher rate threshold. Using 2000/01 allowances and rates, the credit will be exhausted for those with taxable income of £35,800 or more.

MARRIAGE BREAKDOWN

Allowances Once a couple have separated, there used to be an entitlement to an additional personal allowance but this was abolished from 6 April 2000.

The children's tax credit will however be available from 6 April 2001.

Where there is only one child, the children's tax credit will be able to be shared between the parents.

However, where there is more than one child then, so long as those children spend part of their time with each parent, an allowance will be available to each parent independently (subject to the income restriction). We can advise on how best to maximise the available relief.

Asset transfers Marriage breakdown often involves the transfer of assets between husbands and wives. Unless the timing of any such transfers is carefully planned there can be adverse C consequences.

If an asset is transferred between a husband and wife who are living together, the asset is deemed to be transferred at a price that does not give rise to a gain or a loss. This treatment continues up to the end of the tax year in which the separation takes place.

C can therefore present a problem where transfers take place after the end of the tax year of separation.

IHT on the other hand will not cause a problem if transfers take place before the granting of a decree absolute on divorce. Transfers after this date may still not be a problem as often there is no gratuitous intent.

Maintenance payments An important element in tax planning on marriage breakdown used to involve arrangements for the payment of maintenance. From 6 April 2000 there will only be limited tax relief for some taxpayers over 65.

HOW WE CAN HELP 

Some general points can be made when planning for efficient taxation of the family.

Any plan must take into account specific circumstances and it is important that any proposed course of action gives consideration to all areas of tax that may be affected by the proposals.

Tax savings can only be achieved if an appropriate course of action is planned in advance. It is therefore vital that professional advice is sought at an early stage. We would welcome the chance to tailor a plan to your own personal circumstances.

For information of users: 
This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.