The tiered-trust question
The conduit principle treats a trust as a pipe: a capital gain vested in a resident beneficiary is taxed in the beneficiary’s hands and disregarded in the trust. The question in Thistle was whether that pipe keeps flowing through a chain of trusts — where one trust is the beneficiary of another — all the way to the ultimate individuals.
The capital-gains conduit lives in paragraph 80 of the Eighth Schedule:
(1) Subject to paragraphs 68, 69 and 71, where a trust vests an asset in a beneficiary … who is a resident, and determines a capital gain in respect of that disposal … [(a) it is disregarded in the trust; and (b) it is] taken into account … for the beneficiary to whom that asset was so disposed of. (2) … where a trust determines a capital gain in respect of the disposal of an asset in a year of assessment during which a beneficiary … who is a resident has a vested right or acquires a vested right … to an amount derived from that capital gain … [it is disregarded in the trust and taken into account as a capital gain of that beneficiary].
The facts
The Thistle Trust, an inter vivos discretionary trust, was a beneficiary of ten vesting trusts (the Zenprop group). In the 2014–2016 tax years the Zenprop trusts realised capital gains on disposing of assets and distributed the proceeds to the Thistle Trust, which then distributed them to its own beneficiaries in the same years. Thistle, relying on the conduit principle, did not account for CGT; SARS assessed it and imposed understatement penalties.
What the Court held
The Constitutional Court held that paragraph 80(2) — as amended in 2008 — governs, and that the common-law conduit cannot be used to pass a determined capital gain through an additional trust tier. The gain is taxed in the trust in whose hands it is determined; it does not cascade to the ultimate beneficiaries through an intervening trust.
The 2008 amendment changed the opening of paragraph 80(2) from “where a capital gain arises in a trust” to “where a capital gain is determined in respect of the disposal of an asset by a trust” — it is that change the Court relied on to block the multi-tier conduit.
The penalty outcome
Thistle lost on the CGT merits, but it did not lose the penalties. The Constitutional Court refused SARS leave to appeal on the understatement penalties, which therefore fell away — Thistle had taken its position on legal advice, and the penalty claim failed on the facts. The judgment is authority both for the no-tiered-conduit rule and for the protective value of a properly reasoned tax opinion.
Practical effect
Frequently asked questions
No. In Thistle Trust the Constitutional Court held that paragraph 80(2) — not the open-ended common-law conduit — governs a trust’s capital gain, and since the 2008 amendment it does not let a determined gain pass through a further trust tier. The gain is taxed in the trust that determined it.
No. Thistle lost on the CGT merits but the understatement penalties were set aside — it had acted on legal advice. The case is authority both for the no-tiered-conduit rule and for the protective value of a reasoned tax opinion.
A structure where a trust is itself a beneficiary of another trust, so distributions pass through more than one trust before reaching individuals. In Thistle, ten vesting trusts distributed gains to the Thistle Trust, which distributed onward.