You won`t escape tax if you deal in unit trusts

Published May 6, 2000

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In our financial advisers` guest column, Beric Croome, a tax partner

at Kessel Feinstein, takes a look at the tax consequences of switching

funds.

Taxpayers are generally very sensitive to the fact that if they buy and

sell shares regularly they may be regarded as dealers in shares and hence

liable to income tax on the proceeds of the sale of shares.

In such a case,

the net gain realised would be added to the taxpayer`s normal income and

taxed at the taxpayer`s marginal rate.

It is difficult to state categorically whether a particular taxpayer is a

dealer in shares and hence liable to normal tax on the proceeds of the sale

of shares, or an investor, in which case the gains realised constitute a

gain of capital nature and are not liable to normal tax.

The majority of tax cases in South Africa deal with the capital versus

revenue debate and the courts have specified a number of tests that can be

used as an aid in determining whether or not a tax payer should be liable

to tax on the proceeds of the sale of shares.

Many taxpayers choose not to invest in shares personally but rather to

invest in equities via the range of unit trusts available in South Africa.

Clearly the interest received from such unit trusts and with effect from

February 23 2000, foreign dividends received from unit trusts, will be

liable to tax. Where a person invests in one unit trust and switches to

others on a regular basis and realises a gain thereon, the question that

arises is whether such gain is liable to income tax or not.

According to figures recently reported, the unit trust industry attracted

inflows of some R100 billion during the last year. Only R4,5 billion

represented net inflows. The balance of R95,5 billion represented funds

switched from one unit trust to another.

It is clear that a substantial amount of funds is moved from one unit trust

to another and this raises the question whether the proceeds received by

investors constitute revenue or capital for the purposes of tax.

In those cases where a unit holder regularly switches from one unit trust

to another in order to realise a profit and to keep in step with the top

unit trusts in the country, the gains realised, in my view, will be subject

to income tax.

Such a taxpayer would be regarded as a dealer in unit

trusts, no different to a dealer in shares, and fully liable to normal tax

on the proceeds received.

In these cases, the taxpayer generally does not receive the funds but

merely gives instructions to divest from one unit trust and to reinvest in

another.

The taxpayer does not receive cash, but from a tax point of view

an amount has accrued in his or her favour, which has immediately been

re-invested in another unit trust. This does not remove the tax problem

that could arise from regularly switching from one unit trust to another.

Trevor Manuel, the Minister of Finance, in his Budget speech on February

23, indicated that capital gains tax (CGT) would be introduced into South

Africa with effect from April 1, 2001. He advised that an investor in unit

trusts would not be liable to CGT on gains realised but that the unit trust

itself would be liable to CGT on gains realised on shares or other

investments sold by it.

Resident unit trusts will therefore be liable to

CGT regardless of the nature of the investor.

This does not, in my view, detract from the risk attached to investors in

unit trusts being classified as dealers in unit trusts if they regularly

buy and sell units.

The introduction of CGT does not solve the capital revenue debate. It only

makes one point certain and that is that some form of tax will be paid when

unit trusts or shares or other assets for that matter, are disposed of.

The

imposition of CGT merely determines that tax will be paid either at the

natural person`s marginal rate or CGT will be paid in the manner

attributable to the individual taxpayer.

The S A Revenue Service (SARS) is introducing the New Income Tax System

and interfaces are being introduced between SARS, the Registrar of

Companies, the banks, financial institutions, the Johannesburg Stock

Exchange and others.

In time it is more than likely that SARS will be aware

of the volume of transactions in the unit trust industry and will be able

to follow up the switching taking place.

Taxpayers must be aware of the fact that if they are regularly buying and

selling unit trusts, they will be regarded as dealers and have a duty to

disclose such information in their personal income tax return.

The

non-disclosure of material facts in the tax return is a serious offence and

can result in substantial financial penalties as well as criminal sanction.

The fact that a taxpayer switches from one unit trust to another and does

not retain the cash from the disposal of the unit trusts but merely

reinvests it in another fund, does not remove the need to disclose details

of the transactions undertaken in a particular tax year.

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