It is well known that trusts and estates have been under the magnifying glass of the South African Revenue Service (SARS) for a while now. This led to the introduction of an anti-avoidance measure (Section 7C of the Income Tax Act) effective from 1 March 2017, whereby SARS accesses growth in a trust. SARS wanted a way to access growth in assets, which people historically deliberately moved into a trust and thereby “froze” the value of the estate for estate duty purposes.
The real life story shared in this article provides certain lessons for spouses and partners where trusts are involved. Although trusts have been around in the world for almost a thousand years, it remains one of the most misunderstood and sometimes abused vehicles where families’ assets are housed.
Trusts are frequently used (and abused) by spouses as a vehicle into which they transfer their assets, using the trust for their own benefit and not for the benefit of third parties (the beneficiaries). There have been a number of court judgments where it was held that one of the factors a court may consider is when certain substantial assets were held in trust by one of the parties who used the trust as his/her “alter ego”.
The SA Revenue Service (Sars) attempts to limit the abuse of trusts as a means of tax evasion by individuals. Sars identifies persons and entities that are closely connected to the beneficiaries of the trust – especially where income and capital gains have been transferred to such persons and entities – since the beneficiaries are the parties who will directly benefit from all income and capital gains accrued in the trust.
A legal guardian is an adult appointed to look after your child should you and his/her other parent die before the child has reached the age of 18.
To choose the appropriate person is not an easy task. First make a list of the possible candidates and then you and your spouse/partner can discuss the advantages and disadvantages of each candidate. Consider the following:
Who’s parenting style, values and religious beliefs are the closest to yours?
Who is in the best position to accept the responsibility for caring for a child – emotionally, financially (ample provision should be made by either investment or life cover) physically etc
With whom does the child feel comfortable already?
Would your child have to move and would that cause problems?
Does the person you are considering have other children? If so, would your child fit in or be left on his/her own?
It is relatively simple to set up an inter vivos trust and to comply with statutory law so as to have a legal trust on the face of it. However, in the light of case law where certain trust structures have been exposed as a ‘sham’, or the alter ego of the estate planner, as well as the Davis Tax Commission’s focus on trusts