Ray, Your contributions are invariably thoughtful and it is always a pleasure to joust electronically!
1 As you say, only express trusts are required to register: Reg 42(2)(b). The extract you quote from TRSM 21010 is absolutely incorrect. Non-express trusts are not required to register. Never. Not ever. Not even hardly ever. TRSM 21040 quotes the law, which makes this clear, as a judge would say, beyond peradventure.
2 The contents of TRSM 21030 and TSEM 9500 are perhaps just unfortunate. An express trust will be encountered most often in relation to a human settlor, dead or alive, and a declaration of trust, deed or will. This rather pre-supposes that the publication is aimed at readers of “Janet and John go to Trusts” (but without essential pictures). That may be justifiable in certain types of guidance for lay readers but HMRC Manuals are used by more discerning people with professional responsibility, including HMRC employees. And in my view, often stated here, sometimes thoroughly misused. If it proves essential to challenge a public pronouncement by HMRC, which is clearly wrong, my experience is that eventually it is conceded once it reaches the desk of a brain owner… But before that happens there can occur a great deal of hassle, name-calling and costs as the apparatchiks at minion level defend the party line.
3 I have no doubt that an “express trust”, unless specifically defined and it is not, includes a trust created by legislation (or a corporate settlor). The statutory trusts on intestacy in s47 AEA 1925 are one example. So para 1 Schedule 3A of the regs is essential. (It does not always follow that the existence of an exemption proves that otherwise the law would have applied). TRSM 23140 clarifies this but TRSM 23020 undermines that with the fatuous comment “…trusts may be created in the absence of a will or under the intestacy rules. As these were not intentionally created by the settlor, trusts created in these instances are not express trusts and therefore not registrable express trusts for the purposes of TRS”. This comment is misleading and wrong but, hey, it’s only an HMRC Manual!
4 The TRS system does not absolve any person who is required to do so to notify chargeability separately to any relevant tax or make any other similar contact which tax law requires. No doubt we will have flotillas of reasonable excuse claims in the FTT from taxpayers claiming that they thought TRS was enough.
5 As this was raised by you some time back I draw attention to the the FCA rule changes from 29 July 2022 concerning funeral plan trusts. See FPCOB 3.1 and Annex 1. A “funeral plan provider” will probably be a non-human settlor who, one hopes, will not read the TRSM and conclude that their trust is not express. Will exclusions apply? Is the trust really “incidental” for para 14 Sch 3A and can para 11 apply, not least where the provider is permitted to obtain a payment of a “surplus”. Perhaps we will soon get another knee-jerk afterthought clarification from HMRC.