Auditing a private trust is essential to ensure its financial health and compliance. Trusts are taxed separately from their settlor and beneficiaries, and auditors play a crucial role in verifying the accuracy of trust accounts and tax returns.

Introduction

A private trust is a legal entity created by a settlor (the person who creates the trust) to hold and manage property for the benefit of one or more beneficiaries. The trust is governed by a trust deed, which sets out the trust’s terms and conditions, including the trustees’ powers and duties, the rights of the beneficiaries, and the distribution of the trust assets.

Purpose and Function of Private Trusts in India

• Asset protection and succession planning: Private trusts can help to protect assets from creditors and lawsuits. They can also be used to ensure that assets are transferred to the settlor’s intended beneficiaries in a smooth and efficient manner.
• Tax planning: Private trusts can be used to reduce the tax burden on the settlor and the beneficiaries. For example, income generated by a trust is taxed separately from the income of the settlor and the beneficiaries.
• Provision for minors and dependents: Private trusts can be used to provide for the needs of minors and dependents. For example, a trust can be created to provide for the education and maintenance of a minor child.
• Charitable and philanthropic giving: Private trusts can be used to make charitable and philanthropic donations. This can be a good way to support causes that are important to the settlor.

Formation of a Private Trust

Legal Requirements and Documentation

Legal Requirements

• The settlor must be of the age of majority and of sound mind.
• The settlor must have the capacity to contract.
• The settlor must have a clear intention to create a trust.
• The trust must have a lawful purpose.
• The trust must have a valid trust property.

Documentation

• A trust deed must be executed in writing and signed by the settlor and two witnesses.
• The trust deed must be registered with the relevant sub-registrar of assurances.

The trust deed must contain the following information:

• The names and addresses of the settlor, trustees, and beneficiaries.
• The assets are to be transferred to the trust.
• The terms and conditions of the trust, including the trustees’ powers and duties, the beneficiaries’ rights, and the distribution of the trust assets.

In addition to the above, the following documents may also be required:

• Identity and address proof of the settlor, trustees, and beneficiaries.
• Proof of ownership of the trust assets.
• Valuation of the trust assets.
• Stamp duty on the trust deed.

Key Features of a Private Trust

The key features of a private trust include:

• Separate legal entity: A private trust is a separate legal entity from the settlor, trustees, and beneficiaries. This means that the trust assets are protected from the personal creditors of the settlor, trustees, and beneficiaries.
• Perpetual succession: A private trust can exist indefinitely, regardless of the death or incapacity of the settlor, trustees, or beneficiaries.
• Flexibility: Private trusts can be structured to meet the specific needs of the settlor and beneficiaries.

Audit Requirements for Private Trusts

Statutory Obligations

Under the Income-tax Act, 1961 (the Act), all private trusts are required to have their accounts audited if their total income exceeds Rs. 1,50,000 in a financial year. The audit must be conducted by a chartered accountant (CA). Talk to CA today and learn more!

Types of Audits

There are two main types of audits for trusts:

• Financial audits: Financial audits are conducted to assess the financial health of a trust and to ensure that the trust assets are being managed properly. Financial audits typically involve reviewing the trust’s accounting records, bank statements, and other financial documents.
• Compliance audits: Compliance audits are conducted to ensure that the trust is complying with all applicable laws and regulations. Compliance audits typically involve reviewing the trust deed, the trust’s investment portfolio, and the trust’s tax returns.

In addition to these two main types of audits, there are a number of other types of audits that may be conducted on trusts, such as:

• Forensic audits: Forensic audits are conducted to investigate suspected fraud or other financial irregularities in a trust.
• Special purpose audits: Special purpose audits may be conducted for a variety of reasons, such as to assess the value of the trust’s assets or to determine the beneficiaries’ eligibility for certain benefits.

The type of audit that is conducted on a trust will depend on the specific needs of the trust and the beneficiaries. For example, a financial audit may be conducted on a trust that holds a large amount of assets, while a compliance audit may be conducted on a trust that is subject to complex regulations.

Role of the Auditor

The auditor’s role is to examine the trust’s books of accounts and verify the accuracy of the financial statements. The auditor also reviews the trust’s tax returns to ensure that the trust is complying with the relevant tax laws.

In addition to the above, the auditor may also:

• Assess the trust’s internal controls and risk management systems.
• Review the trust’s investment portfolio to ensure that it is appropriate for the trust’s objectives and risk tolerance.
• Investigate any suspected fraud or other financial irregularities.
• Provide advice and recommendations to the trustees on how to improve the trust’s financial management and compliance practices.

The auditor’s role is to provide assurance to the trustees and the beneficiaries that the trust assets are being managed properly and that the trust is complying with all applicable laws and regulations. The auditor’s work can help to protect the beneficiaries’ interests and to ensure that the trust is fulfilling its purpose.

Here are some of the benefits of having a trust audited:

• Increased transparency and accountability
• Reduced risk of fraud and other financial irregularities
• Improved financial management and compliance practices
• Enhanced credibility and reputation of the trust
• Increased confidence among the beneficiaries

If you are a trustee or a beneficiary of a trust, you should consider having the trust audited by a qualified auditor. An audit can help to ensure that the trust is being managed properly and that the beneficiaries’ interests are being protected.

Reporting and Filing

The auditor is required to submit an audit report to the trustees. The audit report should contain the auditor’s opinion on the financial statements and any other matters that the auditor considers to be important.

The trustees are required to file the audit report with the Income-tax Department along with the trust’s income tax return.

Taxation of Private Trusts in India

Taxation Framework

The following taxation framework applies to private trusts in India:

Income Tax Act, 1961: The Income-tax Act of 1961 is the primary legislation that governs the taxation of private trusts in India. Under the Income-tax Act, trusts are treated as separate legal entities for tax purposes. This means that the trust income is taxed separately from the income of the settlor and the beneficiaries.

The rate of tax applicable to a trust depends on the type of income that the trust earns. For example, business income earned by a trust is taxed at the maximum marginal rate, while income from interest, dividends, and capital gains is taxed at the applicable slab rates.

Wealth Tax Act (Abolished): The Wealth Tax Act 1957 was abolished with effect from April 1, 2015. This means that private trusts are no longer liable to pay wealth tax in India.

GST Implications: Private trusts are also subject to the Goods and Services Tax (GST) Act, 2017. Under the GST Act, private trusts are treated as registered persons if they make taxable supplies of goods or services. If a private trust is registered under the GST Act, it is required to charge GST on its taxable supplies and file GST returns.

It is important to note that the taxation of private trusts in India is complex, and there are a number of exceptions and exemptions that may apply. It is advisable to consult with an experienced tax advisor to discuss the specific tax implications of your private trust.

Here are some additional tips for managing the taxation of your private trust:

• Keep accurate records of all income and expenses. This will help you to prepare accurate tax returns and to avoid any tax disputes with the authorities.
• Understand the different types of income that are earned by the trust and the applicable tax rates. This will help you to plan your tax liability effectively.
• Make use of all available tax deductions and exemptions. This can help to reduce your tax liability.
• File your tax returns on time and pay your taxes in full. This will avoid any penalties and interest charges.

Get in touch with our experts at Vakilsearch and learn more about Trust registration and Tax planning!

Read More:

• What Type of Trust Is Best?
• What Are the Compliance Requirements for Trust Accounts?
• How to Avoid a Tax Audit?