BUDGET 2018

B1Following the annual national budget speech delivered by Finance Minister Malusi Gigaba on 21 February, we highlight some of the most significant matters arising below:

  • The much-debated VAT rate has been increased from 14% to 15%, which was widely expected although hugely unpopular given the political sensitivity coupled with the effect that this will have on the poor;
  • The corporate income tax and transfer duty rates have been left unchanged;
  • The CGT inclusion rate (40% for individuals, 80% for companies or trusts) was left unchanged too (although we do expect these to go up to 50% / 100% in the near future);
  • “Bracket creeps” or “stealth taxes” had a significant impact on the current budget and refer to marginal tax brackets not being adjusted upwards for the effect of inflation annually. This year, no adjustments will be made to the top 4 tax brackets for individuals. Assuming that inflation is 6%, it will therefore be 6% “easier” for taxpayers to fall into a higher tax bracket compared to last year.
  • A new estate duty / donations tax bracket is to be introduced for donations or estates in excess of R30 million, and which will attract tax at 25%. Amounts below this threshold will still be taxed at the prevailing rate of 20%.
  • The above and other most significant changes can be summarised as follows:
  WAS NOW
Top marginal PIT rate 45% 45%
VAT rate 14% 15%
Tax rate for trusts 45% 45%
Estate duty for estates > R30m 20% 25%
CGT annual exclusion R40,000 R40,000
Primary rebate for individuals R13,635 R14,067

The Minister also alluded to the following matters which would be subject to legislative intervention or refinement during the course of the legislative year ahead:

  • Interaction of anti-avoidance rules relating to share buybacks and dividend stripping and the general reorganisation rules are to be reviewed, since current rules may affect legitimate transactions (especially in the preference share funding context);
  • Appropriateness of the current high tax exemption as part of the “controlled foreign company” (CFC) regime will be considered. However, legislation targeting foreign companies held by foreign trusts (which have SA resident beneficiaries) and classifying these as CFCs will be reintroduced;
  • To further encourage venture capital company investments, the appropriateness of the current passive investment income threshold is to be revisited, as well as the timing of the “group company” disqualification requirement;
  • The “official rate of interest” (used to calculate tax consequences of interest-free or low-interest loans), currently at prime less 2.5%, is to be increased; and
  • Further refinements will be made to the new “debt relief” legislation introduced in 2017 to remove anomalies.

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

WITHDRAWAL OF VAT RELIEF FOR RESIDENTIAL PROPERTY DEVELOPERS

B2Section 18B of the Value-Added Tax Act[1] was introduced effective 10 January 2012 in a bid to grant relief for residential property developers caused by the slump in the property market at that time. Many property developers, registered for VAT, would develop residential properties with a view to dispose of these properties in the short-term as trading stock and as part of its VAT enterprise. However, following the global financial crisis of little less than a decade ago, many property developers found themselves in a position where they were increasingly forced to rent out residential properties once a development was completed due to the slower rate at which properties could be disposed of compared to earlier.

The letting of residential property is typically exempt from VAT. Due to a change in use of the properties therefore (albeit temporarily) from being held for sale as trading stock to now being put up to be let in the interim while being on market constituted a change in use of the properties. Due to the change in use of the properties, from being used to make taxable VAT supplies in the ordinary course of business and being sold as trading stock by the developer, to now being used to make VAT exempt supplies in the form of being used to generate residential rental income, the provisions of section 18(1) of the VAT Act would ordinarily have applied. In terms of section 18(1), where goods have been acquired previously for purposes of making VATable supplies, and these goods are subsequently used to make exempt supplies, the VAT vendor must be deemed to have disposed of all those assets for VAT purposes. In other words, even though no actual disposal of assets has taken place, such a disposal is deemed to take place for VAT purposes and which gives rise to output VAT having to be accounted and paid for by the developer based on the open market value of the property at that stage.[2]

As one could quite easily imagine, having to account for output VAT in these circumstances may be prohibitive, especially considering that the value of a property will likely have been enhanced due to the development and that VAT inputs thus far claimed by the developer would be overshadowed by the output VAT amount that is now required to be claimed.

It is in acknowledgement hereof that section 18B was introduced to the VAT Act in 2012. In terms of that provision, property developers were granted a 36-month grace period within which to sell properties, and during which time these residential properties could be rented out without a deemed supply being triggered for VAT purposes.

When introduced originally, it was made clear at that stage that the relief for temporary letting as explained above will only be in effect until 1 January 2018. However, it is arguable that the property market has not recovered sufficiently yet for the relief to be withdrawn at this stage.

[1] 89 of 1991

[2] Section 10(7) of the VAT Act

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

ADDITIONAL MEDICAL EXPENSES TAX CREDIT

B3Section 6B of the Income Tax Act[1] provides for an additional medical expenses tax credit (“AMTC”) which is calculated against qualifying “out of pocket” medical expenses. This tax credit reduces the amount of income tax a natural person (hereinafter referred to as the “taxpayer”) is liable to pay. The AMTC is granted in addition to the medical scheme fees tax credit (“MTC”) in respect of fees paid to a registered medical scheme.[2]

The AMTC can be claimed by a taxpayer in respect of medical expenses incurred by that individual towards the medical expenses of that taxpayer as well as any of his or her dependants as defined. A “dependant” includes the spouse or partner of the taxpayer, any dependent children of the taxpayer or spouse, any other members of the taxpayer’s immediate family in respect of whom the taxpayer is liable for family care and support as well as any other person who is recognised as a dependant of the taxpayer under the rules of the relevant medical scheme.

In order for the expenses to qualify for the AMTC, the expenses must not have been recoverable by the taxpayer from any person (e.g. from the taxpayer’s medical scheme or an insurer under a medical gap cover insurance plan). Qualifying medical expenses can furthermore only be claimed in the year of assessment during which they are actually paid.

The types of expenses that would qualify for the AMTC include amounts paid for services rendered and medicines supplied by any duly registered medical practitioner, dentist, optometrist, homeopath, naturopath, osteopath, herbalist, physiotherapist, chiropractor or orthopaedist. Costs incurred for hospitalisation in a registered hospital or nursing home or home nursing by a registered nurse, midwife or nursing assistant will also qualify.

Any “over the counter” medicine will not qualify unless it is prescribed by any duly registered physician (as listed above) and acquired from a registered pharmacist. Medical expenses incurred and paid outside South Africa will qualify if it relates to services and medicines which are substantially similar to those listed above. Furthermore, the Commissioner may also prescribe qualifying expenses in respect of physical impairment or disability that could qualify for tax relief.

The AMTC amount is based on specific formulas and will depend on the taxpayer’s age (i.e. whether or not the taxpayer is 65 and older) and whether the taxpayer, his or her spouse or any of the taxpayer of his or her spouse’s children has a disability as defined.

[1] No. 58 of 1962

[2] Section 6A of the Income Tax Act

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

INTEREST RECEIVED BY NON-RESIDENTS ON SA BANK ACCOUNTS

B4Persons that are not tax resident in South Africa (“SA”) are only taxed in SA on income received by or which accrued to such non-resident from an SA source. This will include interest received on an SA bank account.[1]

Non-residents may, however, be exempt from SA income tax on interest earned in terms of section 10(1)(h) of the Income Tax Act. The section 10(1)(h) exemption does not apply though to the extent that the non-resident is a natural person who was physically present in SA for a period exceeding 183 days in the 12-month period preceding the date on which the interest was received by or accrued. In these circumstances, the non-resident must register for income tax and declare such SA source interest to the South African Revenue Service. The exemption will also not apply where the debt from which the interest arises is effectively connected to a permanent establishment of that person in SA[2] or where the interest received is in the form of an annuity.[3] The general interest exemptions in section 10(1)(i) may, however, still apply to non-residents that are natural persons.

Other than for an income tax effect, non-residents earning SA source interest can also be subject to the withholding tax on interest (“WTI”) at a rate of 15%, unless certain exemptions apply.[4] This withholding rate can be reduced by an applicable double taxation agreement between SA and the foreign country where the person (who is a non-resident for SA tax purposes) is tax resident. Two exemptions from WTI may apply to non-residents receiving interest on an SA bank account. Firstly, there is a general exemption from interest received from SA banks.[5] Secondly, no WTI is payable where the non-resident exceeds the 183-day threshold as set out above.[6]

In summary, non-residents are not subject to WTI on interest received on an SA bank account. Also, no liability for income tax will arise on condition that none of the exclusions in section 10 mentioned above applies. To the extent that any of these exclusions apply though, the non-resident will have to register for income tax in SA and submit an income tax return. An applicable double taxation agreement should also be considered as it may contain specific provisions relating to the taxation of interest and providing relief to the extent that none is afforded by the domestic legislation discussed in this article, although this will not affect the obligation to submit an income tax return to the South African Revenue Service.

[1] Section 9(2)(b) of the Income Tax Act, 58 of 1962

[2] Section 10(1)(h)

[3] Section 10(2)(b) of the Income Tax Act

[4] Sections 50A to 50D of the Income Tax Act

[5] Section 50D(1)(a) of the Income Tax Act

[6] Section 50D(1)(c) of the Income Tax Act

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

THE TAXATION OF EMPLOYEE INCENTIVE SCHEMES

B3It has become popular commercial practice for many employers to design employment incentive schemes whereby employees are remunerated for services rendered over a period of time by allowing them to participate in share incentive schemes. Typically, these schemes take the form of either cash-based settled schemes or share-based settled schemes. The former involves participating employees receiving a cash payment after a certain period at the exercise of their share appreciation rights equal to the increase in value of the underlying share value to which the scheme is linked. Share-based payments, on the other hand, involve the employees receiving actual shares in the employer company and which would (ideally) have increased in value over the period of time, due in part to the employees’ endeavours and involvement in the company’s activities.

In terms of section 8C of the Income Tax Act,[1] these benefits received by employees through participation in such schemes are taxed on income tax account, in other words, on the same basis as though these benefits had been a salary earned.

Depending on whether the rights granted under the scheme are restricted or not, the tax consequences arising for the employee will fall due either when the options are granted to the employees (in the case where no restrictions in relation to the options exist), or only once they are exercised or vest for purposes of section 8C (typically when the restrictions linked to the rights granted falls away).[2] At that stage, the gain to be taxed is calculated as being the value of the benefits received in terms of the scheme minus the amount paid (if any) to acquire those benefits.[3]

Restrictions for section 8C’s purposes typically take the form of a restriction on when the rights acquired may be exercised (typically linked to an employee remaining in service of the company for a number of years), or a prohibition on the employee transferring or selling those rights at market value to other persons (the rights granted are often not permitted to be sold to another).[4]

Take the following as an example: Company A grants an employee the right to receive shares in it worth R10 by paying an amount of R1 only. If that right to take up shares may be exercised immediately, and no restriction linked to transferability thereof for example exists, that “unrestricted equity instrument” will give rise to a taxable gain of R9 when the option is received. Where the right to subscribe for shares in Company A for R1 may however only be exercised if the employee is still in employment of Company A within 3 years’ time, or may be exercised at any point in time but may not be sold to another, then the gain realised for section 8C’s purposes will only be calculated when and at the value of the shares when these are eventually acquired. In such an instance, the gain calculated should be reduced by the subscription price of R1 paid for the shares. Similarly, if the reward does not involve the subscription of shares, but rather a payment to the employee of the increased value of shares over a predetermined period in time, the value of the shares minus the R1 paid to acquire the options will be the amount of the gain subject to income tax.

Section 8C has been the focus of many legislative amendments over the past few years and involves arguably one of the most complex provisions of the Income Tax Act. Employees and employers alike would therefore be well-advised to take detailed tax advice prior to entering into, and exercising, rights provided for in terms of employment incentive schemes such as these described above.

[1] 58 of 1962

[2] Section 8C(3)

[3] Section 8C(2)

[4] See the definition of “restricted equity instrument” in section 8C(7)

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

SECURITIES TRANSFER TAX

B2Levied at 0.25% of the value of shares transferred,[1] the securities transfer tax (“STT”) is a tax often neglected and forgotten. Introduced in 2008, the tax is levied on the transfer of shares held in South African companies or the transfer of membership interests held South African close corporations. The issuing of a share is however not a “transfer” for purposes of the Securities Transfer Tax Act, nor the buying back / redemption / cancellation of a share by the company whose share it is itself where that company is in the process of having its existence terminated.[2]

Due to being a tax which is often overlooked, taxpayers often neglect the administrative requirements linked to the tax too, not only in terms of their relative payment obligations towards the fiscus and doing so timeously, but also due to their failure to observe the relevant filing obligations linked to the requisite tax payments.[3] Such administrative oversights may affect a future application by taxpayers for tax clearance certificates to be issued to them, and may also have a bearing on applications for the suspension of amounts of tax in dispute (STT or other) and ostensibly due to the Commissioner.[4]

STT is ultimately borne by the purchaser of the shares being transferred,[5] although a number of exemptions may apply.[6] Primary among these are transfers of shares to which the so-called “group relief” provisions in the Income Tax Act[7] apply,[8] as well as a transfer of shares in property rich companies on which transfer duty is levied.[9] Finally, in terms of the de minimis provision in section 8(1)(r), STT will also not apply to transfers of shares where the STT payable is less than R100. In other words, no STT is levied on a transfer of shares where the shares transferred have a value of less than R40,000.

It is important to note that STT is levied on the transfer of both listed and unlisted shares, and clients are therefore encouraged, in the interest of a clean tax administrative record, to take their STT obligations seriously.

[1] Section 2(1) of the Securities Transfer Tax Act, 25 of 2007

[2] See the definition of “transfer” in section 1 of the Securities Transfer Tax Act

[3] These requirements are contained in the Securities Transfer Tax Administration Act, 26 of 2007

[4] In terms of section 164(3)(b) of the Tax Administration Act, 28 of 2011, a taxpayers compliance history is to be considered where the Commissioner decides to suspend an amount of tax in dispute from being payable pending the outcome of that dispute.

[5] Section 7 of the Securities Transfer Tax Act

[6] Section 8

[7] 58 of 1962

[8] Section 8(1)(a)

[9] Section 8(1)(n)

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

VAT AND TRANSFER DUTY

B1We are often asked whether the sale or purchase of immovable property is subject to VAT or to transfer duty. Confusion appears to creep in especially in those cases where only either the seller or purchaser is a registered VAT vendor.

The answer to the question lies in the Transfer Duty Act,[1] and specifically in sections 2 and 3 of that Act which determine that the transfer duty is payable on the value of immovable property acquired by any person, and that the duty is payable by the acquirer. In other words, the transfer duty is a tax on the purchaser.

Section 8 of the Transfer Duty Act provides for instances where the purchaser of the property will be exempt from transfer duty being levied against it. The list of potential exemption includes instances where the sale is a “VATable” transaction.[2] In other words, where the sale of the immovable property concerned is therefore a taxable supply for VAT purposes, no transfer duty will be leviable. (This is however subject to certain compliance related requirements being met, including that the prescribed declarations are submitted, that security is tendered for the tax to the extent necessary and that the Commissioner issues a certificate that this transfer duty exemption’s requirements have all been met.[3])

By implication therefore, since the sale will have to be a taxable supply for VAT purposes for the transfer duty exemption to be met, the implication is that the sale must be made by a VAT vendor, and therefore subject to VAT. The status of the seller (i.e. whether it is VAT registered or not) determines whether the purchaser is liable for either VAT or the transfer duty.

To summarise therefore, whether transfer duty or VAT is payable by a purchaser of immovable property is determined with reference to the status of the seller: if VAT registered, VAT is levied and not transfer duty. If the seller is not VAT registered, transfer duty is payable as the default position (and unless any of the other exemptions in section 8 of the Transfer Duty Act applies). Therefore, the purchaser of immovable property will always as a default be required to pay transfer duty, unless the seller is a VAT vendor (and the property is sold as part of its enterprise). In such an instance, the sale will be subject to VAT at 14% and payable by the purchaser, rather than transfer duty which would otherwise have been payable and according to the applicable sliding scales.

[1] 40 of 1949

[2] Section 8(15) of the VAT Act

[3] Section 8(15)(a) to (c) of the Transfer Duty Act

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

TRANSFER DUTY

B3Transfer duty is a tax levied upon the purchaser of immovable property situated in South Africa.[1] The duty is levied in accordance with the following sliding scale and is based on the value of the property which is the subject of the transfer:

Value of the property (R)

 

Rate

 

0 – 900 000

 

0%

 

900 001 – 1 250 000

 

3% of the value above R900 000

 

1 250 001 – 1 750 000

 

R10 500 + 6% of the value above R 1 250 000

 

1 750 001 – 2 250 000

 

R40 500 + 8% of the value above R 1 750 000

 

2 250 001 – 10 000 000

 

R80 500 + 11% of the value above R2 250 000

 

10 000 001 and above

 

R933 000 + 13% of the value above R10 000 000

 

While the sliding scale above previously only applied to natural persons acquiring property, this is no longer the case, and legal persons too are subject to transfer duty based on the above table. (Previously, legal persons were subject to transfer duty simply at the maximum rate in the table being applied to the entire value of transfers where a legal entity bought property).

Based on the above table therefore property transfers involving property worth less than R900,000 are effectively exempt from transfer duty, although the tax exposure may quickly thereafter jump to involve significant amounts. From the perspective of individuals buying property financed by way of a mortgage bond registered in favour of a lending bank, the duty quickly becomes a material consideration when purchasing a property, considering that the financing of the duty is typically not covered by financing provided by a commercial bank and which therefore may require the duty to be settled by way of existing cash resources available to prospective buyers.

Most notably, property transfers on which the transfer duty may be levied are not limited to transfers of immovable property only, but also includes the transfer of shares of so-called “property rich residential companies”, that is the sale of shares in a company where more than 50% of the value of such a company is derived from residential property owned by that company.[2] [3]

Various exemption apply in respect of transfers of property where the transfer duty will not be levied.[4] These include where the transfer involves a transaction where the relevant group relief provisions of the Income Tax Act[5] are applied, or where the transfer is subject to VAT (i.e. where the seller sells the property as part of its VAT enterprise).[6]

[1] Section 2(1) of the Transfer Duty Act, 40 of 1949

[2] See paragraphs (d) and (e) of “property” in section 1 of the Transfer Duty Act.

[3] Interestingly, the anti-avoidance provision does not extend to shares transferred in companies which own non-residential property.

[4] Section 9 of the Transfer Duty Act.

[5] 58 of 1962

[6] Section 8(15)

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

WELCOMING TAX NEWS FOR FRANCHISE OWNERS

B2The Tax Court has upheld a decision that a tax deduction allowed by section 24C of the Income Tax Act may be applied to franchisee costs. Section 24C permits the deduction of certain expenses in the current tax year assessment, where those expenses are not yet incurred, on the basis that these expenses will contractually be incurred in future years. This tax allowance protects businesses from being taxed on earmarked funds that bloat their annual earnings.

Where did this decision come?

The appeal involved the taxpayer (restaurant chain) against additional assessments raised by SARS for its 2011 to 2014 years of assessment. They arose from SARS’ refusal of deductions claimed by the taxpayer as allowances in respect of future expenditure in terms of section 24C of the Income Tax Act.

The crux of the dispute lies in whether or not the income received by the taxpayer from sales of meals to its customers can properly be regarded as arising directly from – or put differently, accruing in terms of – the franchise agreement itself. The taxpayer maintains that it can whereas SARS maintains it cannot.

However, as far as franchisees are concerned, it is clear that where a franchise agreement sets out an obligation to incur future expenditure, such expenditure may very well fall within the beneficial parameters of section 24C of the Act.

The Court’s decision

The Tax Court held that there need not be one physical contract document to give rise to section 24C’s benefit. Furthermore, while different parties were involved (the franchisor and the restaurant’s customers), the franchisee’s agreements with each were “inextricably linked” and “not legally independent and separate”.

The income deducted was, therefore, regarded as earned under the same contract as the taxpayer’s future expenditure, fulfilling the requirements of section 24C.

Reference:

  • B v Commissioner for the South African Revenue Services (IT14240) [2017] ZATC 3 (3 November 2017)

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)

DIVIDENDS TAX RETURNS

B1

With effect from 1 April 2012, dividends tax was introduced to replace the then “secondary tax on companies” (or “STC”). The tax is currently levied at 20%. The dividends tax regime brought with it a requirement for dividends tax returns to be submitted periodically (if even no liability for dividends tax arose) and we wish to bring to our clients’ attention when this would be required.

From 1 April 2012, dividends tax returns were required for all taxpayers who paid a dividend.[1] Although not initially required, but the Income Tax Act was subsequently amended retrospectively to provide therefor. Returns were, from that date, not required for dividends received though. However, through various amendments being introduced, the scope of the dividends tax compliance regime was broadened significantly. With effect from 21 January 2015, dividends tax returns were also made compulsory for all dividends tax exempt (or partially exempt) dividends received.[2] The most significant implication flowing out of this amendment is that from this date, all South African companies receiving dividends from either South African companies, or from dual-listed foreign companies (to the extent that the dividend from the foreign company did not comprise a dividend in specie). The requirement for dividends received from dual-listed foreign companies to also carry with it the requirement for a return to be submitted was however removed a year later, with effect from 18 January 2016.

Where dividends are paid by a company, or dividends tax exempt dividends are received by any person from South African companies, the relevant returns (the DTR01 and/or DTR02 forms) must be submitted to SARS by the last day of the month following the month during which the dividends in question were received or paid. In those instances, where a dividends tax payment is also required, payment of the relevant amount of tax is to be effected by the same date too.[3]

Although the non-submission of dividends tax returns at present to not carry any administrative non-compliance penalties, we always encourage our clients to ensure that they are fully compliant with relevant requirements prescribed by tax statutes. We would therefore encourage our clients to revisit their dividends history and ensure that their records and returns are up to date and as required by the Income Tax Act.

[1] Section 64K(1)(d) of the Income Tax Act, 58 of 1962 (“the Income Tax Act”), as it read at the time.

[2] Section 64K(1A) of the Income Tax Act. Dividends received from regulated “tax free investment” accounts do not require a return to be submitted.

[3] Section 64K(1)(a) to (c)

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)