SA Trusts can now distribute to offshore trusts
For a long time, the South African Reserve Bank (SARB) prohibited money from being transferred directly from local trusts to offshore trusts.
You may have had offshore exposure in your local trust through asset swops and other investment vehicles, but if you want to distribute to overseas beneficiaries, you must first withdraw funds from the trust and then transfer to them through the SARB.
This recently changed. SARS declared that beginning August 1, 2023, it will evaluate and possibly approve petitions to transfer funds from South African trusts to offshore trusts. This adjustment coincides with the South African Reserve Bank's (SARB) recent relaxation of several currency control regulations.
While this new alternative provides numerous prospects, there are tight criteria and a thorough application process. If you are an investor or trustee, you must understand these requirements.
There is certainly no one-size-fits-all answer, and the drawbacks and benefits should be examined while deciding.
Drawbacks:
1. Complex Regulatory Requirements.
• Strict compliance required: The procedure is extensive, necessitating meticulous documentation and adherence to both SARS and SARB regulations.
• Long approval process: Each application is assessed individually, which can take weeks or even months.
2. Cost • Legal, tax, and accounting assistance can be costly.
• Administrative burden: Extensive documentation and regular reporting increase management time and expenses.
3. Tax obligations
• The South African trust must pay all relevant taxes (capital gains, dividends, etc.) before distribution, preventing tax deferral to the recipient. Money held in a trust is often taxed at a higher rate than money held in the name of a company or individual.
4. Uncertainty and Evolving Practice
• New regulations may impact future distributions and compliance needs.
• Disputes: Failure to meet SARS or SARB rules may result in delayed or refused distributions.
Benefits:
1. Global Wealth Diversification.
Offshore trusts may provide superior asset protection during political or economic volatility in South Africa.
2. Succession and Estate Planning
• Multi-Jurisdictional Estate Planning: This allows families with members living in different countries to structure their affairs more efficiently.
• Offshore trusts facilitate the transfer of money to beneficiaries outside South Africa, simplifying inheritance processes.
3. Tax preparation
• Offshore trusts can optimise worldwide tax positions with proper preparation and professional counsel, but must follow all applicable requirements.
4. Regulatory Clarity
• Official Approval: SARS and SARB now provide clear protocols for trustees and investors, eliminating legal risks.
The ability to transfer money from a South African trust to an offshore trust is a useful tool for global estate and investment planning. Professional guidance is essential to maximise benefits and avoid pitfalls.
