Trusts and tax general anti-avoidance rules does the new GAAR prevent selected common structured transactions involving the interposition of a trust?
General anti avoidance provisions ("GAAR") in the Income Tax Act and the accompanying judicial doctrines have been developed to combat schemes that are designed primarily to avoid the incidence of taxation by exploitating the loopholes in the Act. On the other hand, trusts in South Africa have commonly been used as a means to warehouse and freeze assets in order to minimise estate duty and also in schemes designed to minimise or escape income tax and donations tax. In South Africa the GAAR provisions (sections 80A and 80L) are fairly new and there is no case law yet to provide guidance on the depth and its scope of application. This dissertation seeks to analyse the impact that the new provisions of the general anti avoidance rules and the so-called judicial doctrines have on transactions or schemes involving a trust. It will also try to answer whether the previous general anti avoidance rules (section 103(1) was effective against these schemes/transactions and, if not, whether the new provisions are effective against previously successful schemes/transactions.
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