Department of Mercantile Law

Permanent URI for this community

https://scholar.sun.ac.za/handle/10019.1/128

Browse

Browsing Department of Mercantile Law by browse.metadata.advisor "De Waal, M. J."

Now showing 1 - 2 of 2
  • Thumbnail Image
    Item
    A South African perspective on some critical issues regarding the OECD model tax convention on income and on capital, with special emphasis on its application to trusts
    (Stellenbosch : Stellenbosch University, 2014-12) Du Plessis, I.; De Waal, M. J.; Du Toit, C. P.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: Trusts are used for a variety of purposes, both in South Africa and abroad. Like so many other entities, trusts often do not function only in one jurisdiction and may therefore be exposed to international double taxation. South Africa, like most other states, enters into bi-lateral double taxation treaties, to limit the effects of international double taxation. Most of these treaties are based on the OECD Model Tax Convention on Income and on Capital (the OECD MTC). The South African trust is a unique creature. It is not based on the dual ownership concept on which most common law trusts are based, yet, it is not a juristic person either. The question that this research aims to address is how South Africa will interpret and apply certain provisions of the OECD MTC to trusts. Although the South African position is investigated, it is compared to the positions of the United Kingdom, Canada and the Netherlands. The dissertation starts with an analysis of the trust law in each of the relevant states, followed by an overview of the taxation regime governing trusts (and the parties thereto) in each state. The status of double taxation treaties and their interpretation are examined before certain critical provisions of the OECD MTC are analysed to determine how South Africa will apply these provisions to trusts. Hence it is explored whether a trust will be regarded as a person, whether it may be a resident and a beneficial owner for purposes of the OECD MTC. Furthermore, possible solutions for conflicts of attribution in the application of double tax conventions to trusts are investigated. The dissertation concludes that South Africa will regard a trust as a person for purposes of the OECD MTC. Moreover, some types of trusts may be viewed as residents and as beneficial owners for purposes of the OECD MTC. The solution proposed in the OECD’s Partnership Report should be applied to resolve conflicts of attribution involving trusts.
  • Thumbnail Image
    Item
    n Teoretiese en praktiese ondersoek na 'n betroubare en toepaslike boedelbeplanningsmodel
    (Stellenbosch : Stellenbosch University, 2004-12) Pretorius, F. J.(Frederik Johannes); De Waal, M. J.; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law .
    ENGLISH ABSTRACT: This study deals with a theoretical and practical investigation of the subject discipline of estate planning in order to identify a reliable and appropriate estate planning model. For purposes of this study, the investigation is restricted to the development of such a model in respect of a person within the niche of an average salary earner with the focus on an appropriate financial planning in respect of his death. An investigation is conducted into the basis from which the subject emerged and developed. It is determined that this basis is the method of successionand that it also forms an integral part of any proposed estate planning. Relevant principles and the methods of succession which were in force in the Roman, Roman-Dutch and English law of succession are analysed. Through the historic development, against the background of these systems, a link is made to the South African law of successionand the position in terms of the South African law is determined. The theoretical basis of the subject discipline is also laid down. The different role players involved are identified in the process and the proposed estate planning process is identified and described. The administration of estates process within the context of the English law is compared with the same process in the context of the South African law through a comparative study. This investigation is limited to those aspects of the administration of estates process important for purposes of estate planning, especially in view of the influence that the rules of the Englishlaw had on the South African law in respect of this process. Practical problems currently experienced by trust companies in respect of the administration of estates are also identified and analysed. These problems also indicate the need for the identification of a reliable and appropriate estate planning model. The identification of an appropriate estate analysis model is identified as an essential control mechanism for the proposed estate planning model. This model is furthermore expanded in order to point out the problem areas in respect of different scenarios with a determined conventional family construction as the basis for the analysis. Available estate planning instruments and techniques are identified as aids in order to facilitate the testator's estate plan by virtue of the proposed estate planning model. Testamentary mechanisms are distinguished from inter vivos mechanisms and applicable legislation is discussed. A reliable and appropriate estate planning model is identified, bearing in mind the results of the researchconducted. This study is concluded with an adjudication and consolidation of the results of the research with a special reference to the implementation phase of an estate plan and the frequent revision thereof.