Die persoonlike belastingaanspreeklikheid van direkteure van maatskappye, lede van beslote korporasies en trustees

Abstract

Companies, close corporations and trusts are taxpayers in terms of the provisions of the Income Tax Act. In terms of section 97 of the Income Tax Act the public officer of a company and a close corporation and the trustees of a trust are the representative taxpayers of the respective entities. Representative taxpayers can incur personal liability in terms of section 97 for the income tax debt of the taxpayer. Only a director or a member of a close corporation who is specifically appointed as public officer and who is therefore also the representative taxpayer, can incur personal liability in terms of section 97 of the Income Tax Act. A trustee becomes a representative taxpayer in respect of a trust if and when the trust earns income. There is no indication of whether trustees are jointly and severally- or only jointly liable for the income tax debt of a trust. Trustees thus have a potentially greater exposure to personal liability than directors or members of close corporations. Apart from the Income Tax Act other potential statutory sources of personal liability for directors, members of close corporations and trustees include the Companies Act, the Close Corporations Act and the Trust Property Control Act. In terms of the common law directors can also be held personally liable for the tax debt of a company where fraudulent activities have occured. The position of a trustee is more complicated. Personal liability is not clearly established in terms of either the Trust Property Control Act or the common law. However, there is sufficient cause for concern that trustees may indeed find themselves held liable for the tax debts of the

trust. Trustees should therefore approach the office of trustee with due caution.