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The following article was first published in the Mint newspaper on 17th January, 2023. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

‘Should I write a will or form a trust to distribute my assets?’, mentioned setting up a trust with a daughter as trustee and adding one more person as trustee and beneficiary. As far as I know, a trustee cannot be the beneficiary. Please confirm if this is correct.

—Dinesh Haria

When using a private trust in India, it is not unusual for the trustee to also be a beneficiary of such trust. There is no embargo under the Indian Trusts Act, 1882, which prohibits an individual to be a trustee as well as beneficiary. In practical terms, for most families which set up trusts for their family business and personal property, this is a common approach.

That said, from a tax perspective, if the same individual acts in all three capacities – settlor, beneficiary as well as the trustee of a private trust, such trust may be treated as a “revocable trust” and thereby does not achieve any tax or asset protection. This should definitely be avoided.

Who can donate to an Hindu Undivided Family (HUF), and what is the tax implication on various donations paid or received in an HUF account?

—Dr. Ajay Garg

A HUF comprises all persons forming part of one lineal family branch and having a common ancestor. All members of the family including a spouse / wife are regarded as ‘members’ of the HUF and have different legal rights in the HUF

Any person including an individual (being father, mother, sons, daughters-in-law, daughters, etc.) can contribute / gift monies to an HUF.

Under the Income Tax Act, 1961, any funds received by a taxpayer (including an HUF) as a gift without consideration is chargeable to tax in the hands of such taxpayer, if the aggregate value of such gift received in one FY exceeds ₹50,000.

However, gift received by an HUF from its members is specifically exempt from such taxation. Thus, there should not be any tax liability in the event a member of an HUF gifts money to the HUF.

Note, if a member of an HUF, gifts money to the HUF, any income arising from it will have to be clubbed with the income of such member.

WRITTEN BY

For further information, please contact:

Rishabh Shroff – Cyril Amarchand Mangaldas,
rishabh.shroff@cyrilshroff.com

Rishabh is Co-Head of the Private Client practice and Head of International Business Development at the Firm, specialising in family constitutions and settlements, trusts, wills and succession planning.

Rishabh Shroff is a Partner in Cyril Amarchand Mangaldas, and operates out of the Mumbai office. After completing his LL.B from the London School of Economics, London, he joined the Firm in September 2007. He was admitted as an advocate in the Bar Council of Maharashtra & Goa (India) in 2007. He is also a Solicitor, Supreme Court of England & Wales.

Private Client Experience

Rishabh is the Co-Head of the Private Client practice at the Firm, specialising in family constitutions and settlements, trusts, wills and succession planning. He provides succession, taxation, estate and wealth planning advice to wealthy individuals and their families, who are often promoters of large family businesses. He also provides related advice to trustees and other private client service providers, such as family offices and institutional / corporate trustees.

Rishabh advises on a number of issues, including the creation and management of domestic trusts, along with advising both trustees and beneficiaries in relation to their relative rights, responsibilities and obligations. He is experienced in the drafting and creation of inter-vivos trusts and their constitutional mechanisms, and has experience in dealing with complex issues such as settler reserved powers, protector powers and appointment mechanisms. He also frequently advises on complex issues arising under the Indian exchange control regime (including in respect of Non Resident Indians and foreign trusts and companies), SEBI Takeover Regulations and the SEBI Listing Agreement, etc.

Rishabh is involved in the setting up and administration of a number of bespoke private trust companies in India. He also advises on a number of charitable and philanthropic endeavours, including on India’s statutory Corporate Social Responsibility regime.

Rishabh was featured in detail in a landmark publication on family business and the next generation of corporate India, “The Inheritors: Stories of Entrepreneurship and Success” by Sonu Bhasin (Penguin Books, November 2017)2. The said book talks about his journey in his own business, and how those personal experiences have helped him better understand the dynamics between family & business.

Japan Desk & Corporate Experience

Rishabh is a Partner in the Firm’s Corporate team, specialising in foreign investments into India, private mergers & acquisitions and joint venture transactions. He had also worked in the Firm’s Projects & Projects Finance (infrastructure) team for two years (2007 – 2009).

Rishabh is the Co-Head of the Firm’s Japan Desk, and works with Japanese clients frequently. He has been a part of the Japan Desk for over 13+ years, and during this time has advised a number of leading Japanese and international companies on their investments into India. He is responsible for managing the Indo-Japanese transactions handled by the Firm, and for building and maintaining relationships with its clients in Japan. He regularly travels to Japan for speaking and participating in various India focused seminars.

Rishabh had worked for three months in Homburger AG (Zurich) in 2008 as part of a Secondment Program between the Firm and Homburger AG. He was also seconded to Withers LLP (London) in August 2013 for four months, and to Cravath, Swaine & Moore LLP (New York) in July 2007 for five months.

WWF India

Rishabh is the Philanthropy Ambassador for WWF India. As an active philanthropist and someone who is deeply concerned about the environment, Rishabh works closely with WWF India on various policies, initiatives and activities through the year, including on matters of environmental policies and changes.

Rishabh is a keen writer, and hopes to release a number of publications in the area of Private Client law in the near future. When he is not writing, Rishabh can be found reading, travelling extensively, playing the piano or playing badminton.

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