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Trusts and Estate Planning

In common law, a trust is neither a legal entity nor a juristic person. The trust is actually the Trustees acting in their capacity as such. However, there are exceptions to this basic legal concept, and these are brought about by specific Acts.

I know of two such Acts –

The Income Tax Act defines a “person” as, amongst others, (c) any trust

The Companies Act defines a “juristic person” as (b) a trust

These exceptions have significant consquences.

In the case of the Income Tax Act, this enables SARS to tax trusts and to state when a trust must register as a taxpayer.

In the case of the Companies Act, the definition means that, contrary to the view held by SAICA for 9 years, and by me for 11, the trustees are not the shareholders of a company owned by the trust, so even if they are all directors, the company is not owner managed and is not, therefore, exempt from producing Annual Financial Statements for review.

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