The “rules” for an IPDI are not met as the dismemberment of a civil law property in this manner generally creates two legal rights in land, the usufruct and the bare ownership. No disposition into trust as required by s.43(2) a) or b) takes place, and if I understand correctly cannot be created and indeed cannot exist over Spanish land.
There is therefore no settlement into trust or state of affairs equivalent to a trust, as required in a) b) or c) of S.43(2) ITA 1984. There is no interest in possession created IN SETTLED PROPERTY. There may arguably be a legal interest in possession created under Spanish law, but certainly not a settled one.
The Spanish dismemberment does not create a term of years either under ss.43(3). See the definition of a lease under the LPA 1925 and s.146 which converts a lease for life or lives into a ninety year lease which terminates on the death of the lessee by notice to his estate from the Lessor. Nothing like that happens under a Civil law Usufruct as it is not a lease, and is generally dealt with under an entirely separate chapter of the applicable civil code. I do not think that you will find such a procedure in Spanish law as to notice having to be served upon the usufructuary’s succession to terminate the usufruct, although as ever I stand to be corrected.
The closest that you can get under English land law to an right in land equivalent to a usufruct is the profit à prendre, which developed out of the Norman law post 1066, whose longstanding and present existence HMRC resolutely refuse to recognise.
Please note that a lease under English law did not originally create an interest in land, that developed only later. See Street v Mountford [1985] 1 AC 89 for a further more up to date discussion of the difference between a licence and a lease, and you will see that a usufruct bears absolutely no “legal” resemblance to either other than possession of eh land. There is no right of entry or of re-entry under a usufruct, even coming out of the circular fictional orbit into which HMRC seek to propel it.
The fact that HMRC attempt to use a form of comparable or equivalence of outcome test by way of an analogy to the entity classification alleged to have been created in Memec is again a red herring as the usufructuary dismemberment does not create an entity whether a silent partnership or a more noisy one.
If you wish to go under HMRC’s yoke, for Band rate purposes under a relevant property trust equivalence, please bear in mind that the UK tax consequences during the life and then on the death of the usufructuary may not be exactly what the bare owner might wish. The usufruct generally disappears on the death of the usufructuary without any charge to death duty abroad. Normally if the capital has been used up or if the usufructuary dies leaving the property in aggravated disrepair, his estate is liable to the bare owner’s for the cost of putting it to rights (I note that there is no condition survey required here on entry or on death).
How did this fictional state of affairs arise? HMRC’s fallacy is based upon the pre-2006 notion that an IPSP meant that the whole property, not just the usufruct remained within the usufructuary’s estate. That fictional device was used by certain firms of chartered accountants to great effect under the French succession duty Treaty. Unfortunately, that changed in 2006 with the arrival of the relevant property trust, so their alleged fiction, which was unsupported by the actual wording of s.43(2) itself, is no longer valid. They still however maintain that the fictional practice has to remain the same despite the disappearance of the fictional hook upon which they hung their coat.
If you want further general discussion, which is not complete, please read the full article “Outcome Bias …” by Adrian Shipwright, a retired judge of the Upper Tax Tribunal and myself in https://addingtonchambers.com/outcome-bias-is-this-hmrcs-approach-to-the-characterisation-of-usufructs/. I say not complete because a follow up is planned going into greater detail after the first broadside. What is curious is that HMRC are brought to their knees and have to settle and then produce the same flawed arguments in relation to other taxpayers that they have had to settle in prior cases as if they were still valid.
Peter Harris