From time to time the court delivers a judgment that has a ripple effect beyond what
was expected, resulting in estate planners reconsidering their planning strategies.
Such a judgment was the judgment delivered by the Supreme Court of Appeal (SCA)
in the case of the Commissioner for the South African Revenue Services v
Brummeria Renaissance 2007 6 SA 601 (SCA) (Brummeria case). In this case the
interest-free loan and the right to use loan capital free of any interest obligation were
under scrutiny. The SCA had to rule on whether or not this right had a determinable
value and whether or not this value could be taxable in the hands of the borrower.
The SCA ruled that the right under an interest-free loan should be included in the
gross income of the borrower.
Since estate planning often involves the use of an interest-free loan, as estate
planning tool, to remove a growth asset from the estate of a planner, it could not be
generally accepted any more that the granting of such loan would not have any tax
implications. Although the interest-free loans used in the Brummeria case, did not
relate to an estate planning exercise, the ruling resulted in much speculation
regarding the future of the interest-free loan as estate planning tool. SARS tried to
ease the uncertainty by issuing Interpretation Note 58, but there is still uncertainty to
some extent.
The focus of this mini-dissertation is to explain when and to what extend the
provisions of the Income Tax Act 58 of 1962 (ITA) as well as the Estate Duty Act 45
of 1955 (EDA) will apply to the granting of an interest-free loan as part of an estate
planning exercise. The provisions of the gross income definition, sections 7 and 64E,
the provisions of donations tax as well as paragraph 12(5) and 12A of the Eighth
Schedule to the ITA, were explored. Sections 3(3) and 3(5) of the EDA are
discussed with the use of these loans for estate planning in mind. The question
whether or not the interest-free loan is still a useful estate planning tool is also
answered. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/15508 |
| Date | January 2014 |
| Creators | Preston, Margaretha Johanna |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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