Pros and cons of buying property as a juristic or natural person

There are four main legal entities in which a property can be bought in South Africa and each has its pros and cons, says Adrian Goslett, regional director and chief executive of RE/MAX of Southern Africa.

“SA law recognises various types of ‘persons’, regarded as either natural persons or juristic persons. A natural person is a person who acts and conducts business in his own name, whereas a juristic person is a legal entity, such as a company, trust or close corporation,” says Goslett.

Buying as a natural person is the most common means of purchasing a property and refers to buying a home in your own name as an individual, without representing any other legal entity. In this case, transfer duty will be paid according to a sliding scale depending on the purchase price of the home.

Martin Potgieter, attorney notary and conveyancer, says that under the current legislation, homes priced from R0 to R750 000 are exempt of transfer duty, whereas properties priced between R750 001 and R1.25 million attract 3 percent on the value above R750 000.

For homes priced between R1 250 001 and R1 750 000 buyers will pay R15 000 plus 6 percent of the value exceeding R1.25 million, properties priced from R1 750 001 to R2 250 000 will pay R45 000 plus 8 percent of the value exceeding R1 750 000, and homes priced R2 250 001 and above will pay R85 000 plus 11 percent of the value exceeding R2 250 000.

Goslett says that when it comes to capital gains tax (CGT), owners will be exempted from paying any CGT on the first R2m of any profit made on the sale of a primary residence. Also, where the primary residence is sold for R2m or less, the full capital gain will be disregarded. In terms of the Capital Gains Tax Act, a primary residence is defined as a property that is owned by a natural person. The owners or their spouses must ordinarily reside in the property as their main residence and it must predominantly be used for domestic purposes.

According to Goslett, buying a property as a natural person is probably the most feasible option for most people; however the downside of owning a property in your own name comes in if you are self-employed.

“If business owners are unable to pay their creditors, they run the risk of losing their property. Any properties they own will become prime targets to their creditors and can be taken away to mitigate losses. Another potential disadvantage is that, if the property is not the owner’s primary residence or is used for business purposes, the CGT exemption will not apply and estate duty is payable when the owner dies,” says Goslett.

Private companies buying immovable property pay transfer duty at the same rate as a natural person. However, no transfer duty is payable by sellers who are registered for VAT and the property forms part of the operations for which they are registered. Should the property be sold as part of a rental portfolio or going concern such as a guest house, the deed of sale must contain certain specific provisions and may be zero-rated for VAT, which means neither transfer duty nor VAT are payable.

Goslett says private companies will pay a comparably higher CGT, with an inclusion rate of 50 percent, and an income tax rate of 28 percent, which translates into an effective CGT rate of 14 percent.

If individuals are shareholders of a company, the value of the shares and the loan account are deemed as assets in their estate and the value as verified by the company’s accountant, together with any amount owing by way of loan account, will increase the value of the estate. Also, a 10 percent secondary tax on companies (STC) of 10 percent is levied on all profits distributed in the form of dividends.

“If the company acquires the property with the intention of selling it to make a profit and does not keep the property for an indefinite period for rental purposes, the South African Revenue Service (SARS) may regard the investor as a dealer and levy income tax at the investor’s tax rate on the profit,” says Goslett. “If income tax is applicable, then no capital gains tax will apply.”

According to Goslett, a significant benefit of this form of ownership is that a private company can accommodate a maximum of 50 shareholders, which can include private individuals, trusts and companies. He says that because the company is a separate legal entity there is some protection afforded to shareholder assets, which can only be attached to cover debts incurred by the company if the individual has stood surety for the company. Most financial institutions will insist that shareholders sign personal suretyships in respect of any loans made by the financial institution to the private company.

Although the introduction of the Companies Act of 2008 phased out many close corporations, existing close corporations could elect to continue to exist until deregistered, dissolved or converted into a private company governed under the new act.

Close corporations face the same transfer duty, CGT and tax implications as companies. Like a company, a close corporation is also a separate legal entity. Goslett says the only differences between buying in a close corporation and a company, are that close corporations are governed by the Close Corporations Act 69 of 1984, they are managed by members, ownership is restricted to a maximum of 10 natural persons and the financial statements have to be prepared by an accounting officer. There is no need to provide audited financials, which substantially brings down the administration fees.

Although another close corporation or company cannot be a member of a close corporation, a trust can be registered as a member of a close corporation.

A trust is established by a founder or settlor, trustees and beneficiaries. The person who forms the trust is referred to as the founder or settlor of the trust. The founder will appoint trustees in terms of the trust deed who will manage the affairs of the trust for the benefit of the beneficiaries that are named in the trust.

According to Goslett, a property held in a trust will not form a part of an individual’s estate when they die, which means that the estate will benefit from estate duty savings. Another benefit is that since the trust is a separate legal entity, the property held in the trust is protected from being attached by creditors of the beneficiaries.

This provides a safe option to protect assets. Other benefits include the fact that there is no executor fees when the owner dies, as there is no need to transfer the property from the deceased into the name of the heirs. All repairs and maintenance as well as other bills such as water and rates will be for the trust’s account.

The downside of buying a property in a trust is that it attracts the highest rate of CGT, with an inclusion rate of 50 percent, and income tax rate of 40 percent, meaning an effective CGT rate of 20 percent. Another disadvantage is that the founder does not have control over the property, as the trust will be the legal owner of the property and the trustees will have the power to administer it.

Goslett says that if finance is required to buy the property, banks are less likely to grant 100 percent bonds to trusts and may require higher deposits.

“Depending on the investment structure that is used when buying a property and the varying tax and legal implications that may be applicable, it is advisable for buyers to consult with legal experts to explore all their options before making their final decision,” Goslett says.

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