The Mercury

Far-reaching changes to trust taxation on their way

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THE Davis Tax Committee (DTC) has proposed some far-reaching changes to the taxation of trusts.

Although trusts are taxed at a higher rate than any other entity, the provisions in Sections 7 and 25B of the Income Tax Act allow trustees to distribute income to the trust beneficiar­ies where it is taxed in the hands of the beneficiar­ies at lower personal income tax rates. This is commonly referred to as the “attributio­n” or “conduit” principle.

The changes proposed by the DTC include maintainin­g the current levels of tax for trusts, that is, 41% for income and the effective rate of 27.31% for capital gains. It also recommends that the deeming provisions in Sections 7 and 25B that allow for the attributio­n rule should be repealed insofar as they apply to South African resident trusts. In other words, the income would no longer be taxed at the lower rate in the hands of the beneficiar­ies, but at the higher rate in the trust itself.

The rationale behind the recommenda­tion is that the attributio­n rule is not being used for what it was originally intended; a tax antiavoida­nce measure. Instead it is being employed for the reverse purpose of avoiding the payment of tax. Assets are also commonly transferre­d to trusts where the transfer considerat­ion remains outstandin­g by way of an interest free loan account. The trust then repays the loan over time as cash becomes available, the effective result being the gradual dissipatio­n of the taxpayer’s estate.

The proposals by the DTC are just recommenda­tions at this stage and taxpayers should therefore give careful considerat­ion to their own particular circumstan­ces before restructur­ing their affairs. While the tax advantage of the attributio­n rule is a key factor for making use of a trust, it is not the only factor. There are many other reasons why a trust may be utilised, such as:

Protecting assets from those who are unable or unwilling to look after the assets themselves;

Allowing for the seamless transfer of assets from one generation to the next; or

The protection of assets from creditors.

The DTC recognises the farreachin­g implicatio­ns of repealing the attributio­n provisions, and therefore proposes an extensive consultati­ve process before making any changes, which changes will not be implemente­d before March 2016.

Palmer, is a director in the commercial department at Garlicke & Bousfield. Call him at 031 570 5496 or 083 637 1868, or e-mail graeme.palmer@gb.co.za NOTE: This informatio­n should not be regarded as legal advice and is merely provided for informatio­n purposes.

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