The common law conduit pipe principle: should we retain this principle in our South African law?
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More than a decade has passed since the ‘common law conduit pipe principle’ was introduced into our South African law of taxation. Following this introduction in 1938, a trust has in some situations operated as a retainer or saver of the identity of certain types of amounts from the point the trust receives each amount type up until that amount exits the trust. Consequently these amounts are not exposed to normal tax even when they finally reach the hands of their beneficial owner. This principle was later incorporated into the Income Tax Act 58 of 1962 by the insertion of both section 25B and para 80 of the Eighth Schedule to that Act. With the passage of time and taxpayers becoming more and more knowledgeable and consistently strategizing new ways of avoiding triggers of certain types of taxes, they realised that the conduit pipe principle could easily be manipulated within a discretionary trust to obtain various tax benefits. As a result of these tax benefits the use of discretionary trusts in South Africa is constantly on the rise. However, their continued use was first brought into question after the 2013 National Budget speech in which it was indicated that these types of trusts would no longer operate as a conduit pipe. This suggested the repeal of section 25B and para 80 of the Eighth Schedule. The doing away with the conduit pipe principle in our law of taxation has necessitated the imposition of the question whether its real purpose and value is properly understood. The National Treasury and SARS do not appear to fully comprehend this purpose – the purpose seems to be to facilitate the avoidance of normal tax. Hence the aim of this study is to attempt to determine the true purpose and value of this principle within our tax law system. This study realises this objective by embarking on an in-depth analysis of Armstrong v Commissioner for Inland Revenue 1938 AD 343 which introduced this principle into our South African law of taxation. This study successfully found that the true purpose of the ‘conduit pipe principle’ is to rule out the possibility of double taxing the amount which has already suffered the consequences of tax at its originating source when it subsequently lands in the hands of its beneficial owner. This means that through the conduit pipe operation of a trust there is assurance that each identity of amount is protected against being lost between the time that amount is paid to the trust and the time the trust pays it over to the beneficiary who will also take advantage of the exempt status of that amount in his hands. This tax benefit is only available if the amount is paid over in the year of assessment during which the trust received it – otherwise it gets caught up in the normal tax net in the beneficiary’s hands. Trustees successfully escape this trap by insisting on making this payment within the same tax period the trust received the amount. The study also looked at the current normal tax treatment of the income that is inclusive of both local dividend(s) and interest from investment(s) and analysed the tax impact these types of amount have on reducing the taxable income of both a discretionary trust and its beneficiary. A comparison was made from a current income tax treatment point of view with the hypothetical time when the conduit pipe principle is finally abolished. It was discovered that beneficiaries of these types of trusts would be taxed more than they are currently being taxed as the dividends and basic interest exemption under the Income Tax Act 58 of 1962 would no longer be available to them. A discretionary trust would no longer be an ideal tool to use in a tax avoidance strategy but will still be a good shelter for the protection of assets. This study further concludes that the conduit pipe principle should be retained in our law because it abolition was apparently recommendation on the basis of its true purpose being misunderstood for tax avoidance rather than avoidance of imposing double tax on an amount that has already been taxed at its source.