Can a trust be regarded as a person for purposes of a double-taxation agreement to which South Africa is a party?

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

Can a trust be regarded as a person for purposes of a double-taxation agreement to which South Africa is a party?

Authors Izelle du Plessis

ISSN: 1996-2177
Affiliations: Senior Lecturer, University of Stellenbosch
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 907 – 927

Abstract

Like so many other entities, trusts often do not function only in one jurisdiction. They may be employed in international transactions, and therefore the trust runs the risk of international double taxation, as do the parties to the trust. South Africa has developed a law of trusts that is unique to this country. It therefore has to be determined how a court would interpret and apply the provisions of a double-taxation agreement, patterned on the OECD Model Tax Convention and to which South Africa is a party, to such a trust. This article explores whether a trust may be regarded as a person for purposes of such a double-taxation agreement. If a trust cannot show that it is a person in terms of the relevant double-taxation agreement, it will not be able to claim the benefits of the agreement. Although it is concluded that a trust will be regarded as a person from a South African perspective, recommendations are made which will put the matter beyond doubt.

The abandonment of landownership in South African and Swiss law

by | Oct 20, 2019 | SALJ, SALJ V134 I4 2017

The abandonment of landownership in South African and Swiss law

Authors Richard Cramer

ISSN: 1996-2177
Affiliations: Department of Private Law, University of Cape Town
Source: South African Law Journal, Volume 134 Issue 4, 2017, p. 870 – 906

Abstract

The possibility of the abandonment of land in South African law has received relatively little attention from academics. This article seeks to engage with the arguments proposed by academics who have written on this question in order to attempt to bring some clarity to the issue. Whether abandonment of ownership in land is possible needs to be determined from an evaluation of the relevant common-law principles as well the relevant provisions of the Deeds Registries Act 47 of 1937, in light of the principle of publicity. It is not, however, sufficient to determine whether abandonment of land is possible. It also needs to be asked whether such abandonment should be permitted in the first place and, if so, in what circumstances. In order to answer these questions, it is useful to engage in comparative research. Switzerland provides an example of a jurisdiction with a permissive regime in respect of the abandonment of land (Dereliktion). While there are a number of lessons that can be learnt from the Swiss approach, its permissive model is not necessarily an ideal one for South Africa to adopt.