Are Trusts Holders of Fundamental Rights During Tax Administration by SARS?

Authors Fareed Moosa

ISSN: 1996-2193
Affiliations: Head of Department: Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 453 – 470


Under South Africa’s tax laws, trusts are statutory persons imbued with legal personality. As such, a trust has the capacity to bear the duty to pay tax. In addition, it is entitled, as a taxpayer, to such statutory rights as may be conferred by a tax statute. In its capacity as a taxpayer, a trust is subject to the Tax Administration Act 28 of 2011 ("TAA") which confers, on the South African Revenue Service ("SARS"), wide powers to conduct an investigation, audit, review, inspection, search and seizure in relation to any taxpayer, including a trust. The exercise of its administrative powers places SARS and its officials on a collision course with a taxpayer’s rights. This article considers whether a trust, as a taxpayer, is entitled to the fundamental rights entrenched in the Bill of Rights and concludes that it is so entitled.