A comparative study of the complexity of trust tax legislation in selected Southern African Development Community countries

Abstract

For many years tax jurisdictions have encountered challenges with the concept of the taxation of trusts. The trust concept itself conjures up thoughts of complexity. The development of the trust as a structure and the subsequent colonial influence on the development of trusts in Africa, resulted in different applications of the common law trust principle in tax legislation. This study explores the complexity of the trust tax legislation by way of a comparison of the legislation in selected Southern African Development Community (SADC) countries. The study applies a qualitative approach to compare the trust tax legislation of the selected SADC tax jurisdictions in an effort to assess the complexity involved in the taxation of trusts. The research methodology employed is doctrinal (black letter law) and includes an analysis of the legislation of the selected jurisdictions. The study reveals substantial similarities in the terminology used in the taxation of trusts in the selected jurisdictions. In comparing the legislation of the jurisdictions that make provision for the flow through principle with those of the jurisdictions that do not make provision for the flow through principle, a larger element of complexity in the legislation becomes apparent with wider legislative design differences. Additionally, jurisdictions that make provision for the flow through principle also introduce anti-avoidance legislation to curb the misuse of income attributed to the beneficiaries of trusts. This anti-avoidance legislation creates additional complexity in the legislation.