If there is a name that is synonymous with tax avoidance in the UK, it is that of the Duke of Westminster. The duke in question was, admittedly, the second duke, who in 1936 won an infamous tax case that permitted him to pay his gardeners in a way that avoided a tax liability. He achieved abiding fame as a consequence of the opinion of Lord Tomlin, who in his judgment on that case said: “Every man is entitled if he can to order his affairs so that the tax attracted under the appropriate act is less than it otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the commissioners of Inland Revenue or his fellow taxpayers may be of his ingenuity, he cannot be compelled to pay an increased tax.”
That statement has, to a large degree, been both the foundation of and justification for all tax avoidance activity in the UK since. That this activity continues is evidenced by the fact that the sixth duke is said to have left an estate worth £9.9bn upon his death this week to his son and yet, despite the fact that inheritance tax is supposedly payable on all estates on death worth more than £325,000, it has been widely reported that very little tax will be due in this case. It seems that the sixth duke has put the second to shame: his forebear saved a few pounds on his wages bill while the sixth has avoided something approaching £4bn. He may in the process have even outdone the fifth duke, who argued the fourth duke died of a war wound 232 years after he suffered it to escape all charges on the estate in the 1960s.
His likely motives for doing so can be easily summarised: there may be greed involved; a belief that the duke’s heirs are better entitled to this property than anyone else; and a hostility to any claim that the state might make on property that has been apparent in the UK aristocracy since the time of the Crusades.
The English legal concept of a trust is believed to have been developed during that era, when knights departing the country with no certainty of returning wanted to ensure that their land passed to those who they thought to be their rightful heirs without interference from the Crown. Trusts achieved that goal and the concept has remained in existence ever since, representing the continual struggle of those with wealth to subvert the rule of law that may apply to others but that they believe should not apply to them.
Recent political challenges have not ended the resulting abuse. Labour tried to introduce effective tax charges on inheritance in the 1970s, the Conservatives undermined them a decade later, and every subsequent attempt to tackle tax abuse using trusts (and Gordon Brown made many), has by and large left existing arrangements intact, only seeking to prevent abuse in new arrangements. As if to add insult to injury, the 2013 general anti-abuse rule, which was introduced by the coalition government and supposedly negated the decision by Lord Tomlin noted above, cannot be applied retrospectively: anything done by a duke before that date is outside of its scope.
So why has this tax avoidance been allowed to continue? First, it’s because no one in the UK has, since 1980, had the political will to tackle the use and abuse of trusts – even though continental Europe has shown it is perfectly possible to run an economy without them. Second, it’s down to the continuing power of the aristocracy and their chosen professional agents (lawyers, accountants, bankers and wealth managers) who have been willing to compromise themselves in exchange for fees to perpetuate the situation. And third, it’s because the Conservatives, in particular, have been keen to let the situation continue unchanged as they support the largely unfettered inheritance of substantial wealth.
Another issue is that we know so little about trusts even when they are at least as powerful as companies and are even more commonly used for tax abuse. This is because of a mistaken perception of privacy, which should only be due to individuals and not artificial arrangements created by law, which trusts are. This can be corrected: we need transparency and that means a full register of trusts and their accounts on public record above modest financial limited, as for companies.
What can be done about this? In addition to the points already noted, the obvious solution is to abolish the inheritance tax reliefs that permit this tax avoidance, whether that be for trusts themselves or for those who own private companies and agricultural land. Inheritance tax assumes that the children of the wealthy are the rightful best next generation of managers of these assets and so lets them be passed on to them tax free, perpetuating wealth concentration in the process.
To put it another way, 800 years of claims by an elite to be above the law applicable to everyone else so that wealth can remain in the hands of the few has to be brought to an end. And if now is not the time to do it, I am really not sure when it will be.