The common law and taxation of trusts in South Africa in the twenty-first century : with emphasis on business trusts.
Mthethwa, Mthokozisi Rodney.
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The purpose of this technical report is not to establish a definitive answer as to the validity and suitability of a business trust as a new form of a business entity, but is aimed at addressing the uncertainties that have emanated from the use of a traditional trust structure as a business vehicle. A critical analysis of the recommendations made by the Margo Commission that the taxation treatment of business trusts and companies should be aligned in order to avoid the tax abuse of business trusts will also be undertaken. Globally trusts, especially discretionary inter vivos trusts, are formed purely for carrying on a business including owning and letting of property. However, there are divergent views whether a trust can be used for commercial purposes. Honore (1985 : Preface) is of the opinion that "The use of trusts for business purposes - no new phenomenon, since testators long since saw the advantage of setting up a trust to carry on their enterprises after their death - raises complex issues of control. It should not be assumed without thorough investigation of the past record and future possibilities of business trusts that there is no room for a tertium quid between the commercial partnership and the incorporated company". Wunsh (1986 : 561 - 82) says that a business trust provides a method of setting up or continuing a business alternative to an incorporated company or close corporation (Honore, 1992 : 74). In general a business trust is a pure trust the main object of which is to carry on a business enterprise with a view to making a profit and distributing it amongst the beneficiaries. Notwithstanding the fact that the Trust Property Control Act which controls all forms of trusts was enacted in 1988, Honore (1992 : Preface) is of the view that business trusts call for some further regulation, but not for the full panoply detailed in the Companies Act or even the Close Corporations Act. The analysis of the recommendation of the Margo Commission to align the taxation treatment of business trusts and companies shows that business trusts are not close substitutes for companies as they are 'pure trusts' formed purely for protecting the founder's business for the benefit of the beneficiaries. Although there may be similarities, there are also dissimilarities between business trusts and companies. Further, there are no compelling reasons for changing the current tax regime since taxing business trusts like companies will not necessarily improve equity or efficiency and particularly prevent perceived tax abuse. Tax abuse should be addressed at its source through better enforcement action to limit tax abuse opportunities. In conclusion it will be shown that although a business trust can at present provide certain tax advantages while still preserving the limited liability of the trustees, legislation is gradually being introduced which will iii result in trading trusts being taxed on the same basis as companies. However, the researcher submits that the legislature will not be solving the problem by aligning the tax treatment of business trusts and companies.