Is the tax practitioner becoming the final verifier of trust compliance? 6 September 2023
November 10th, 2023 11:16
As a result of recent changes, the tax practitioner now has to submit a list of information to the South African Revenue Service (Sars) with the trust tax return. This includes the latest trust deed, resolutions, minutes of the trustee meetings, and so forth. For example, if the trust deed requires the trust to meet at least every quarter, it will be expected of the tax practitioner to submit four sets of signed minutes of trustee meetings. Sars also now asks some uncomfortable additional questions on the tax return which they label as “risk questions”. With the tax practitioner often having no involvement in the ongoing management of the trust, this may leave them in a difficult position, without the required information to submit with the tax returns. The lack of information may result in tax returns being submitted late with resultant penalties. That may also place unnecessary pressure on tax practitioners who are already working under pressure during the tax filing season. The fact that a trust is “taxpayer of last resort” (with other taxpayers such as funders/donors and beneficiaries potentially being taxed on trust income and capital gains and not the trust) resulted in tax practitioners historically leaving trusts for last (and often forgotten) in the queue of tax returns to be submitted for a client. This will no longer be possible, given Sars’s focus on trusts. Sars warned for a while that they would be focusing on trusts again. Sars held a webinar on 29 July 2021 with the title “Trust and Tax obligations”. On 28 September 2022, Sars issued a media release titled “SARS sharpens its focus on Trusts”.
As many are struggling with the new, involved trust tax return, Sars responded by giving further guidance. On 31 August 2023, Sars issued communication titled “Clarification of certain matters pertaining to the completion of the trust income tax return (ITR12t) “
The following matters were highlighted:
* What format, information, and supporting documents are required with reference to Beneficial Ownership;
* The nature of minutes: are all minutes required to be submitted; and
* Capturing persons' details while acting in multiple capacities.
Sars’ aim is to record all beneficial owners of registered Trusts in order to comply with the Financial Action Task Force (FATF) requirements. Certain information must be submitted via e-filing, i.e., a copy of the Trust instrument, Letters of Authority, etc. Tax practitioners are struggling with what “additional documents” Sars requires.
SARS clarified that these documents may include, but are not necessarily limited to:
* An organogram, illustrative, or schematic diagram depicting effective control and how the affairs of the Trust relate to other entities (interest in other entities, i.e. ownership structure in the event of entity-layering);
* An Excel spreadsheet containing the above information; or
* Such other document, which will elaborate on Beneficial Ownership in relation to the Trust.
At least one document is to be submitted that relates to beneficial ownership information together with this year’s tax return. The tax return only caters for 20 beneficial owners. In the event there are more than 20 beneficial owners, the taxpayer must upload a supporting document that reflects the additional beneficial owner(s).
Nature of minutes:
After concerns were raised that it is not necessary to submit all resolutions and minutes since this will be time-consuming and may not necessarily be relevant to Sars, Sars clarified that they require all minutes, excluding those dealing with internal trustee governance arrangements and/or administrative matters to be submitted (that may include trustee amendments, trust amendments, etc.). They did not deal with which type of resolutions need not be submitted. It may be assumed that the same principle has to be applied to trustee resolutions. It appears that all transaction-related resolutions and minutes have to be submitted, regardless of the nature or size of the transaction. Remember the court agreed that a trust is “run by resolution”, so be mindful that trustees do resolutions for all transactions in the trust.
SARS confirmed that the guidance in this regard gives preference to any other contradictory comments and/or communication that may have been communicated during any meeting and/or via e-mail.
Capturing persons’ details:
Concerns were raised that the current tax return requires the same information to be captured multiple times, such as when the same person may be a founder, trustee and/or beneficiary. SARS clarified that this process of multiple capturing will only be required in the first year of submission (for the 2023 tax year). Going forward, the information will be prepopulated in future returns with an edit function to allow for amendments to the beneficial ownership information.
It would be unfair to expect the tax practitioner to “fix” any non-compliance of the trust by the time they submit tax returns. It remains the responsibility of the board of trustees to have the necessary information ready and easily accessible for the tax practitioner to submit the trust’s tax return as well as the additional required information.
~ Written by Phia van der Spuy ~