When Mr and Mrs J set up a Type-A special trust for their eldest son, who is intellectually challenged, their intention was to make certain there would always be sufficient financial resources for his best care, both during and beyond their lifetimes. A special trust was recommended by a professional advisor and with good reason: Type-A special trusts are created “solely for the benefit of a person with a mental or physical disability.”

However, as Mr and Mrs J found out, while Type-A special trusts have very compelling tax benefits, there are also substantial tax limitations. Fully understanding these within the unique personal context of the ultimate beneficiary is essential to ensuring the trust objectives are met over the long-term. And that means relying on specialist and individualised tax advice when considering a trust arrangement of any kind.

Why set up a trust?

A correctly structured trust can be a powerful financial planning tool for business and property owners, wealthy individuals, or families. It can help manage succession, protect assets, provide for children or dependents, navigate estate planning issues and pass on wealth responsibly.

What is crucial is setting up the right structure for the objectives of the particular trust and understanding the consequences – and particularly the tax consequences – of the decisions made.

Which trust is best for you?

There are many different types of trusts in South Africa. For example, an inter vivos (living or family) trust, is created during your lifetime to hold assets such as property, business interests or investments, while a testamentary trust is created through a will (it only kicks in after your death) and is especially important where minor children are involved.

There are also vesting and discretionary trusts, and hybrid trusts that combine the two, as well as a range of specific application trusts like trading (business) trusts, charitable trusts or BEE trusts, to mention but a few.

What about special trusts?

For tax purposes, two types of special trusts are also recognised, the Type-A special trust is intended solely for a person with a mental or physical disability, as in our opening story, and the Type-B special trust created specifically for the benefit of relatives of a deceased person, provided at least one beneficiary is a minor on the last day of the trust’s year of assessment.

The trust types are not mutually exclusive. For example, a trust can technically be both a Type-A special trust and a vesting trust; or both a Type-B special trust and a discretionary trust.

However, the exact trust type really matters from a tax perspective, because Type-A and Type-B special trusts are not taxed in the same way, and both are taxed differently to normal trusts. This should be carefully considered before establishing a trust, and then disclosed when completing the mandatory annual tax returns.

How is income for normal trusts taxed?

In terms of what is called the “conduit principle”, trust income or capital gains may be taxed in the hands of the trust or the beneficiaries, depending on when that income or capital gain vests.

Where the trust itself is taxed, it is taxed at a flat rate of 45%. Beneficiaries are taxed at their personal tax rate on a sliding scale from 18% to 45% and also benefit from various tax rebates. SARS taxes a trust's capital gains depending on whether the gains are retained in the trust or vested to a beneficiary in the same year of assessment. Normal trusts face an effective Capital Gains Tax (CGT) rate of 36% (calculated from an inclusion rate of 80%, which is then taxed at the flat 45% income tax).

Beneficiaries that are individual taxpayers have a maximum effective CGT rate of 18% (calculated from an inclusion rate of 40%) and also qualify for rebates such as the R50,000 annual CGT exclusion, the R3-million primary residence CGT exclusion, and disregarded CGT gains on personal-use assets or compensation for personal injury, illness or defamation.

The special case of Type-A special trusts

Type-A special trusts, on the other hand, are taxed using individual income tax brackets on a progressive sliding scale from 18% to 45%.

Their capital gains inclusion rate is 40%, making their maximum effective CGT rate 18%, lower than for normal trusts and the same as for natural persons. They also qualify for CGT rebates that apply to individuals as listed above. Relief from donations tax on interest-free or low-interest loans to Type-A special trusts also applies.

However, there are some important tax limitations. Type-A special trusts do not qualify for medical tax credits, primary tax rebates, or the annual interest exemption available to natural persons. A Type-A special trust may vest income in a qualifying beneficiary so that the income is taxed in that individual’s hands, enabling the individual to use their own rebates, medical credits and interest exemption.

Bottom line: it’s complicated, so get professional tax advice based on your specific circumstances.

Our tax advice can make all the difference

Whether you’re considering a special trust, an inter vivos trust, or any other structure, the differences in how income and capital gains are taxed, and what tax rebates are allowed, can have a significant impact on the real-world benefit delivered to the trust beneficiaries. The right choice depends entirely on the trust’s objectives, your unique circumstances, and a careful analysis of possible tax consequences.

For specialist, individualised tax advice and professional assistance, contact us.