Causas de la Contaminación del Suelo

In a vesting trust, both ownership and control of the trust property vests in the trustees but they would not typically have discretion over whether income or capital amounts are to be

297 _{1938 AD 343} 298 _{1971 (1) SA 172 (A)}

299 _{Pace & Van der Westhuizen 2014:para B21.2.1; De Koker & Williams 2015:para 12.25} 300 _{De Koker & Williams 2015:para 12.26}

301 _{Dividends tax would have been withheld or paid on the date the dividend was originally deemed} to have been ‘paid’ for dividends tax purposes because the trust had not at that time vested the dividends in the beneficiary. Accordingly, if the dividend is subsequently vested in a beneficiary that is exempt under s 64F(1) or s 64FA(1)(a) within the same year of assessment in which the dividend was received by or accrued to the trust, then the trust may claim a refund under s 64L or s 64M from the company paying the dividend or from the regulated intermediary per Binding Private Rulings 118 (14 May 2012), 125 (25 October 2012) and 129 (10 December 2012) (South African Revenue Service 2015a:39 at para 2.3.1).

distributed to beneficiaries as they would already have vested rights in the income and/or capital as determined by the trust deed302_{. As a result, all vested income and capital may}

be taxable in the hands of the beneficiaries303 _{(subject to the attribution rules contained in}

the Income Tax Act as discussed below).

In a bewind trust, as ownership rests with the beneficiaries, each beneficiary will be liable for the tax due on such trust property (income tax and CGT) from the inception of such a trust but also subject to the attribution rules.

In a discretionary trust the beneficiaries will only obtain a vested right to any income or capital when such amounts are distributed to them as a result of the trustees exercising their discretion as conferred upon them by the trust deed in this regard304_{. If a trustee has}

the discretion about how and also about whether or how much income or capital to distribute to beneficiaries from a trust, then such beneficiaries have a contingent right to income or capital only305_{. A mere contingent right is not generally subject to tax nor does}

it form part of a beneficiary’s estate for insolvency or estate duty purposes306_.

A discretionary trust may also contain some elements of a vesting trust if, for example, some beneficiaries have vested rights to capital but contingent rights to income307_.

The tax liability amount as well as the determination of which taxpayer is liable for tax on income received in a trust will, however, depend on several factors308 _{such as:}

 The provisions laid down in the trust deed with regard to the type of income rights given to beneficiaries and whether trustees are given discretionary powers or not;

 The manner in which the trust was funded (whether by donation to the trust by the founder or by another donor, by sale of assets to the trust or by loans made to trusts);

 In the case of the trust being funded by donation, whether the donor is still alive or not;

302 _{Honiball & Olivier 2009:5} 303 _{De Koker & Williams 2015:12.19}

304 _{Pace & Van der Westhuizen 2014:para B21.3.1; De Koker & Williams 2015:12.19} 305 _{Honiball & Olivier 2009:75}

306 _{Cameron et al. 2002:558 citing among other cases Hilda Holt Will Trust v CIR 1992 (4) SA 661} (A) and Burger v CIR 1956 (1) SA 534 (W).

307 _{Honiball & Olivier 2009:75}

 If the donor is still alive,

o whether the beneficiaries obtaining vested rights to income are minors or majors (that is, whether these beneficiaries are younger than 18 years or not);

o whether there are any conditions attached to beneficiaries receiving benefits (for instance, only obtaining benefits from a certain age onwards);

o whether the trust is an offshore trust or a South African resident trust; o whether other persons are involved in schemes envisaged by subsections

7(2), 7(4), 7(6) or 7(7).

 Regardless of the manner of funding, whether income is distributed to beneficiaries or retained in the trust in any given year of assessment.

The amount of tax payable would depend on whether the taxpayer is an individual (that is, either the founder, donor or an individual beneficiary), a company (which could also be a beneficiary) or the trust itself as different tax rates would apply to each of these types of entities. A comparison of the tax rates applicable can be found in Table 1 in chapter 4.7.5. The taxpayer could, generally speaking309_{, either be the founder of or donor to the trust,}

the trust itself (with the trustees being liable as representative taxpayers on behalf of the trust) or the beneficiaries of the trust310_.

The liability for tax on income received in a trust or received by beneficiaries from a trust is governed by s 25B of the Income Tax Act, which effectively codifies the common law conduit principle discussed above. The provisions in this section are, however, subject to the anti-avoidance provisions or attribution rules of s 7 of the Income Tax Act. The liability for tax on capital gains realised in a trust or received by beneficiaries from a trust is again governed by para 80 of the Eighth Schedule to the Income Tax Act, which paragraph is also subject to the capital gains attribution rules contained in paras 68, 69, 71 and 72 of the Eighth Schedule.

The attribution rules in section 7 and paras 68, 69, 71 and 72 of the Eighth Schedule do not only apply to trusts but have a wider application. The discussion below regarding these provisions will, however, only relate to the specific application thereof to trusts.

309 _{The taxpayer could also be other persons where s 7(4) may find application.} 310 _{Pace & Van der Westhuizen 2014:para B21.2.2}