Is an estate in the course of administration an Entity for the purpose of FATCA or CRS?
The executors of an estate wish to open an account with a discretionary investment manager and are required to “classify” themselves. Do they do so as an Entity (see below – if they are akin to a trust) or as individuals?
FATCA
Article 1(z)(3)(hh) of the 2021 US/UK IGA provides the following definition:
The term “Entity” means a legal person or a legal arrangement such as a trust.
It is clear that a trust is an Entity but there is no reference in the IGA to an “estate”, and I am struggling to see how an estate in the course of administration can be a legal person.
HMRC’s FATCA implementation guidance (August 2014) refers to the tax residence of Trusts (in the context of where a Financial Institution is resident) by reference to the residence of the trustees but no mention is made of executors/personal representatives.
However, Section 3.2 of the guidance provides:
Trusts and Estates
Where a Trust or Estate is listed as the holder of a Financial Account then they are to be treated as the account holder, rather than any owner or beneficiary (although accounts held by the estate of a deceased person are not Financial Accounts – Section 3.14).
However, when a Trust/Estate is treated as the account holder of a Financial Account this does not remove the requirement to identify the Controlling Persons where that entity is a Passive NFFE
which suggests that an estate IS an Entity in the form of a Passive NFFE. But this wasn’t repeated in the IEM.
CRS
The International Tax Compliance Regulations 2015 define “Entity” by reference to that which is found in the CRS at Section VIII ( E) (3):
The term “Entity” means a legal person or a legal arrangement, such as a corporation, partnership, trust, or foundation.
Again no mention of an estate in the course of administration, although reference is made to such in the definition of a [Jurisdiction A/B] Person which is
an individual or Entity that is identified by a [Jurisdiction B] Reporting Financial Institution as resident in [Jurisdiction A] pursuant to due diligence procedures consistent with the Common Reporting Standard, or an estate of a decedent that was a resident of [Jurisdiction A].
Under the terms of the will, it is a trust which is the ultimate beneficiary – so when the administration of the estate is complete, it will be clear that the Trust is an Entity and the discretionary beneficiaries maybe the controlling persons. However, while the estate is in administration, would it be the recipient trustees in the meantime?