CGT shares where there has been a settlement agreement

In dealing with an estate which used to be contentious and is now just administration. There was a property which had a date of death valuation of £950,000, a settlement agreement valuation of £1,190,000 and a sale value of £1,216,000. Beneficiaries A and B were entitled to a share of the residuary estate under the Will and C and D only become entitled under the settlement agreement. The accountant has done a CGT return for A and B personally using their allowances and we appropriated with property meaning C and D used their allowances for the increase from the settlement date to sale. There was then a further CGT return done for the Estate for the remaining 40% of the estate not covered by A and B personally (I think because they get 30% share each under the settlement agreement).

The argument now arises as to how to properly distribute the Estate. A and B are arguing that they have paid their liability and the 40% paid by the estate should come solely from the share going to C and D. C and D are arguing that they only became entitled to the property under the settlement agreement and therefore only the gain from that date to sale is their liability. I am wondering if actually the Estate CGT needs to be deducted from the gross estate in the way income tax or IHT would be and then the net proceeds split between the beneficiaries (I.e. the 40% tax liability would be split 4 ways) or whether all of the tax should be included as an estate liability and then split between all beneficiaries. Alternatively, should A and B be solely responsible for all of the CGT on the basis that they were the only ones entitled to the property when this gain occurred - this seems morally wrong as then C and D would benefit from the increase in value but not pay any tax on it? As we all know, the moral ground doesn’t tend to make any difference when it comes to tax!

Does anyone have any advice or have they experienced anything like this before?

Many thanks

In so far as the property has been appropriated before sale to beneficiaries they have taken as legatees and any gain arising, net of their annual exemption, is that of the beneficiary. Any part not so appropriated before sale gives rise to a gain of the PRs less any exemption under s1K(7) TCGA 1992.

The timeline of the events and the precise content of the settlement agreement is not known. I have assumed that the appropriations were as above and occurred after the settlement agreement but before the sale. The problem with settlement agreements is that they may in themselves constitute a disposal of something, just like a variation which is not within s62(6). It sounds as if the administration period was running, given that it has not yet ended, so adding C and D as residuary beneficiaries could still have resulted in their taking as legatees and that the event itself was not a disposal. What one cannot do is arrive at a settlement which is a non-qualifying variation and then optimise the CGT outcome using the various annual exemptions. The CGT returns must follow the correct legal analysis of exactly what happened. I say this because while every lawyer understands that an analysis on a step by step basis is needed accountants have a tendency to look just at the net outcome and ignore the prior steps that brought it about.

Jack Harper