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Ask Mike Otis Your Own Question

Mike Otis
Mike Otis, Legal Advisor
Category: South Africa Law
Satisfied Customers: 2062
Experience:  B.Comm; LL.B; LL.M.
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If a house is transferred out of a trust to the beneficiary

Resolved Question:

If a house is transferred out of a trust to the beneficiary or beneficiaries, who is liable for transfer duties, costs, and capital gains tax? the trust or the beneficiary to whom it is transferred?

Also is it treated as a sale or is it treated as a distribution and also what value does one assign to the transaction, cost or market value?
Submitted: 3 years ago.
Category: South Africa Law
Expert:  Mike Otis replied 3 years ago.
Welcome, and thank you for your question.

To answer your last question first, when dealing with tax, the parties will be assessed on market related values, especially if it is not an ams-length transaction and the disposal occurs at little or no consideration. It is important to note that one cannot avoid paying these taxes by having the transfer at little or no value.

Transfer duty is payable by the transferee (in this case the beneficiary/s), if any. Usually transfer costs are also payable by the transferee. Capital Gains Tax is payable by the transferor (the trust), if any.

It will be treated as a sale if it is transferred in terms of a deed of sale. If no consideration is payable and the transferees are all beneficiaries, it will probably be treated as a capital distribution.

I trust you find the above in order.

Yours faithfully,
Customer: replied 3 years ago.
If no consideration is payable and the transferees are beneficiaries and it is treated as a capital distribution does that mean that no capital gains tax is payable?

Does this also apply if there is a bond and the beneficiaries take over the bond or replace the bond with another bond? In other words can there be a capital distribution which includes a transfer of obligation for the bond to the beneficiary? The capital distribution being the tangible property with a liability?
Expert:  Mike Otis replied 3 years ago.
If the transfer of the property is treated as a capital distribution, the trust will in all probability still be assessed for CGT as the definition of "disposal" for purposes of CGT is very wide.

However, if the transaction qualifies for the exemption in terms of which residential properties may be transferred from trusts and other legal entities to their beneficiaries/members, then the CGT would simply be rolled over to the beneficiaries. In other words, the beneficiary will be assessed for the combined capital gain, but only if/when the beneficiary later disposes of the property.

Regarding the bond, for CGT purposes the principles remain the same as above. It will be up to the bondholder to decide whether it will permit a transfer of the obligation. However, if the property was financed by raising a bond, the proposed transfer will, in all likelihood, not qualify for the exemption from CGT and transfer duty, because one of the requirements is that the property must have been donated to the trust by the occupant thereof.

I trust you find the above in order.

Yours faithfully,
Mike Otis, Legal Advisor
Category: South Africa Law
Satisfied Customers: 2062
Experience: B.Comm; LL.B; LL.M.
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