“BOOKING” CAPITAL LOSSES ON SHARES IS NOT THAT EASY

B2There is a number of techniques that taxpayers use to reduce their capital gains tax (CGT) exposure on long-term share investments. A common practice is to utilise the annual exclusion of R40 000 provided for in paragraph 5 of the Eighth Schedule of the Income Tax Act[1] by selling shares that have been bought at a low base cost, at a higher market value and then immediately reacquiring those shares at the same higher value, thereby ensuring that the investments’ base cost is increased by as much as R40 000 per year. If the gain on those shares is managed and kept below the annual R40 000 exclusion, taxpayers receive the benefit of a ‘step-up’ in the base cost of the shares to the higher value for future CGT purposes, without having incurred any tax cost.

A reverse scenario is to build up capital losses for off-set against any future capital gains and taxpayers are often advised, especially during times of market volatility, to ‘lock-in’ capital losses created by the expected temporary reduction in share prices. This involves selling shares at a loss and then immediately reacquiring the same shares at the lower base cost, but with the advantage of having created a capital loss – a technique known as ‘bed-and-breakfasting’.

Without placing an absolute restriction on ‘bed-and-breakfasting’, paragraph 42 of the Eighth Schedule limits the benefit that could have been obtained from the ‘locked-in’ capital loss. The limitations of paragraph 42 apply if, during a 45-day period either before or after the sale of the shares, a taxpayer acquires shares (or enters into a contract to acquire shares) of the same kind and of the same or equivalent quality. ‘Same kind’ and ‘same or equivalent quality’ includes the company in which the shares are held, the nature of the shares (ordinary shares vs preference shares) and the rights attached thereto.

The effect of paragraph 42 is twofold. Firstly, the seller is treated as having sold the shares at the same amount as its base cost, effectively disregarding any loss that it would otherwise have been able to book on the sale of the shares and utilise against other capital gains. Secondly, the purchaser must add the seller’s realised capital loss to the purchase price of the reacquired shares. The loss is therefore not totally foregone, but the benefit thereof (being an increased base cost of the shares acquired) is postponed to a future date when paragraph 42-time limitations do not apply.

Unfortunately, taxpayers do not receive guidance on complex matters such as these on yearly IT3C certificates or broker notes, since these are generally very generic. Therefore, taxpayers wishing to fully capitalise CGT exposure on market fluctuations are advised to consult with their tax practitioners prior to the sale of shares.

[1] No. 58 of 1962

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)

DO YOU NEED A TAX CLEARANCE CERTIFICATE?

B3Taxpayers may require SARS to issue them with a tax clearance certificate for various reasons. This includes a general confirmation that the relevant taxpayer’s affairs are all in order and up to date (a so-called “Good Standing” tax clearance certificate), or a certificate being required to participate in certain government tenders.

Perhaps most notably in recent times, natural person taxpayers are also requesting “FIA” tax clearance certificates, being tax clearance certificates issued to taxpayers who intend to utilise their R10m annual foreign investment allowances to transfer funds abroad for investment purposes. The South African Reserve Bank (through its authorised dealers (most commercial banks)) will not grant approval for transfer of funds in this manner without confirmation from SARS in the form of a FIA certificate being issued that the individual’s tax affairs are all up to date and in order.

Many do not realise that the issuing of tax clearance certificates is a process specifically regulated by the Tax Administration Act.[1] Any tax clearance certificate must be requested in the prescribed form and manner by a taxpayer or his/her representative.[2] A tax clearance certificate must be issued in the prescribed format and include at least the original date of issue of the tax compliance status confirmation to the taxpayer, the name, taxpayer number and ID number (or company registration number) of the taxpayer.[3]

After receipt of an application in the prescribed form, SARS must either issue or decline to issue the tax clearance certificate requested within 21 business days, or such longer period as may reasonably be required if a senior SARS official is satisfied that the confirmation of the taxpayer’s tax compliance status may prejudice the efficient and effective collection of revenue.[4]

In practice, SARS often takes well in excess of the 21 business days in which to issue tax clearance certificates, especially for purposes of Foreign Investment Allowance applications. In terms of the Tax Administration Act, SARS may not take longer than the 21 days to process such an application, unless there is some form of proof that tax collections may be jeopardised if the certificate is issued (and which will rarely be the case). Where such delays are experienced though, taxpayers are in practice left with very few remedies, which are conceivably limited to either approaching the Tax Ombud (whose recommendations are not binding), the Public Protector or the High Court for an order forcing SARS to make a decision on issuing a certificate. Most taxpayers will therefore, sadly, simply have to endure SARS’ delays in processing tax clearance certificate applications.

  • [1] Section 256 of the Tax Administration Act, 28 of 2011
  • [2] Section 256(1)
  • [3] Section 256(4)
  • [4] Section 256(2)

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 VAT CONSEQUENCES OF CHANGE IN INTENDED USE OF GOODS

A1_bIt happens ever so often that a business would purchase goods, and subsequently apply those goods in a different manner than it had initially intended to at the time that those goods were acquired. For example, a sole proprietor dealing in motor vehicles may decide to take one of those vehicles and apply it towards personal use. So too a property developer may decide to rather use one of its properties, up for sale, as new office premises for itself.

It is often said in tax circles that Newton’s law (that every action has a reaction) should be extended: every action also has a tax consequence. This is certainly also true where asset continue to be held by taxpayers, albeit with a different intention of how the asset is to be applied.

Where an asset is applied differently from what it has been applied towards in the past, certain tax consequences arises, both on a VAT and income tax account. This article deals specifically with the VAT consequences of such a change in use.

From a VAT perspective, where goods are no longer applied for purposes of the furtherance of a VAT enterprise, those goods are deemed to have been supplied by that VAT enterprise. As a result, output tax is required to be accounted for by the taxpayer on the open market value[1] of those goods deemed to have been supplied.[2] There is some logic to this from a theoretical perspective: the VAT vendor would have claimed input tax when it acquired the goods in question originally. Section 18 is therefore the statutory mechanism whereby the input tax claimed (on the basis that the goods would have been applied towards generating taxable supplies) is effectively reversed.

Where the goods are only partly used for purposes other than in the furtherance of the VAT enterprise, the input tax adjustment will also only be partly required to be accounted for.

An interesting exception to the above is where property developers let their properties temporarily for a period of less than 3 years. In practice, it quite often happens that property developers may decide to let property on a temporary basis due to the slow turnover of stock associated with the industry. Even though technically trading stock of the VAT registered developer would then be used for purposes not forming part of its property selling enterprise, the VAT Act[3] allows for a temporary reprieve from having to account for output tax, and does so based on practical considerations. This pragmatic approach presents an alternative to what would otherwise have only amounted to a cash flow issue: property developers may be required to account for output VAT once the property stock-in-trade is used to supply residential rental income, only to be reutilised as trading stock once sold in a year or two later (and when input tax may then be claimed again). Although therefore of little consequence to SARS (which remains neutral after the rental period in the example), many property developers are heavily dependent on cash flows and would be severely prejudiced, and many would be forced to close shop, had it not been for this practical concession granted in this limited instance.

[1] Section 10(7) of the VAT Act, 89 of 1991

[2] Section 18(1) of the VAT Act

[3] Section 18B 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)

GONE ARE THE DAYS OF TAX-FREE SALARIES ABROAD

B3Many South African taxpayers earning a salary abroad have for many years been able to benefit from so-called “double non-taxation”. This would be the case where salaries are earned in countries where the employer country would not tax salaries earned in that country, and where a domestic South African income tax exemption would also be available to such South African employees. The UAE for example is renowned therefore that it levies very little, if any, taxes on non-resident employees employed in that jurisdiction. This regime interacts quite well with the South African exemption from income tax provided to South African employees working abroad and in terms of which South Africa would in many cases also not levy income tax on salaries so earned abroad. In other words, a salary earned abroad may potentially not be taxed in either the country of source or residence (i.e. South Africa).

In terms of section 10(1)(o)(ii) of the Income Tax Act[1] salaries earned abroad would be exempt from South African income tax if the salary is earned for services rendered outside of South Africa, and the employee would be absent from South Africa for at least 183 days in a tax year, of which at least 60 are consecutive.

In the annual national budget speech earlier this year, Government warned of its intention to withdraw relief for South African individuals working abroad and effectively achieving double “non-taxation” on salaries so earned. This threat has now been borne out by the proposed withdrawal of the exemption in section 10(1)(o)(ii) of the Income Tax Act, proposed in terms of the draft Taxation Laws Amendment Bill published on 19 July 2017. As is explained by the draft Explanatory Memorandum to the Bill,

“It has come to Government’s attention that the current exemption creates opportunities for double non-taxation in cases where the foreign host country does not impose income tax on the employment income or taxes on employment income are imposed at a significantly reduced rate.”

The draft Bill proposes that section 10(1)(o)(ii) be deleted effectively for tax years commencing on or after 1 March 2019. This would effectively mean that South African residents will be taxable in South Africa on salaries earned abroad to the extent that the source country does not levy tax on the income so earned. To the extent however that income is taxed abroad too, South Africa should grant a credit against taxes payable here in terms of either an applicable double tax agreement or the provisions of section 6quat of the Income Tax Act.

[1] 58 of 1962

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)

NON-EXECUTIVE DIRECTORS’ REMUNERATION: VAT AND PAYE

A2bTwo significant rulings by SARS, both relating to non-executive directors’ remuneration, were published by SARS during February 2017. The rulings, Binding General Rulings 40 and 41, concerned the VAT and PAYE treatment respectively to be afforded to remuneration paid to non-executive directors.The significance of rulings generally is that it creates a binding effect upon SARS to interpret and apply tax laws in accordance therewith. It therefore goes a long way in creating certainty for the public in how to approach certain matters and to be sure that their treatment accords with the SARS interpretation of the law too – in this case as relates the tax treatment of non-executive directors’ remuneration.

The rulings both start from the premise that the term “non-executive director” is not defined in the Income Tax or VAT Acts. However, the rulings borrow from the King III Report in determining that the role of a non-executive director would typically include:

  • providing objective judgment, independent of management of a company;
  • must not be involved in the management of the company; and
  • is independent of management on issues such as, amongst others, strategy, performance, resources, diversity, etc.

There is therefore a clear distinction from the active, more operations driven role that an executive director would take on.

As a result of the independent nature of their roles, non-executive directors are in terms of the rulings not considered to be “employees” for PAYE purposes. Therefore, amounts paid to them as remuneration will no longer be subject to PAYE being required to be withheld by the companies paying for these directors’ services. Moreover, the limitation on deductions of expenditure for income tax purposes that apply to “ordinary” employees will not apply to amounts received in consideration of services rendered by non-executive directors. The motivation for this determination is that non-executive directors are not employees in the sense that they are subject to the supervision and control of the company whom they serve, and the services are not required to be rendered at the premises of the company. Non-executive directors therefore carry on their roles as such independently of the companies by whom they are so engaged.

From a VAT perspective, and on the same basis as the above, such an independent trade conducted would however require non-executive directors to register for VAT going forward though, since they are conducting an enterprise separately and independently of the company paying for that services, and which services will therefore not amount to “employment”. The position is unlikely to affect the net financial effect of either the company paying for the services of the non-executive director or the director itself though: the director will increase its fees by 14% to account for the VAT effect, whereas the company (likely already VAT registered) will be able to claim the increase back as an input tax credit from SARS. From a compliance perspective though this is extremely burdensome, especially in the context where SARS is already extremely reluctant to register taxpayers for VAT.

Both rulings are applicable with effect from 1 June 2017. From a VAT perspective especially this is to be noted as VAT registrations would need to have been applied for and approved with effect from 1 June 2017 already. The VAT application process will have to be initiated therefore by implicated individuals as a matter of urgency, as this can take several weeks to complete.

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)

TAX SEASON 2016: NON-PROVISIONAL TAXPAYERS’ DEADLINE

a2_bMany of our clients are not registered for provisional tax, nor are they required to be so registered. These non-provisional taxpayers should however take note thereof that their annual income tax returns (for the 2016 year of assessment which ended on 29 February 2016) are due shortly, and not only on 31 January 2017 as is the case for natural person taxpayers also registered for provisional tax.

All companies are automatically registered for provisional tax. Therefore, non-provisional taxpayers are typically individuals earning little or no income other than from a salary. These taxpayers therefore need to attend to their annual income tax returns with an increased sense of urgency to meet the looming deadline, which is 25 November 2016 for individuals filing returns by way of SARS’ eFiling system. (Those very few individuals who still submit returns manually should have filed their income tax returns by 23 September 2016 already.)

Government Gazette No. 40041 (dated 3 June 2016) identified those persons required to file annual income tax returns for the 2016 year of assessment. The primary exemption from the requirement to submit a return for tax resident natural persons is if the person earned only a salary from a single employer during the year which did not exceed R350,000, and income from interest for that person was also less than R23,800 (or R34,500 if the person is older than 65). The converse holds true though that if a person received income in excess of any of these amounts, they will be required to submit an income tax return for the 2016 tax year.

The Government Gazette also determines the dates by when the relevant persons are required to have submitted their returns by. Provisional taxpayers are annually afforded a slightly more lenient deadline to submit their income tax returns by as opposed to non-provisional taxpayers. This requires non-provisional taxpayers to be extra vigilant of the deadline to submit their annual income tax returns for the 2016 tax year by.

We therefore wish to remind our clients of their filing obligations with SARS and to contact us so that we may accumulate the information necessary to assist them in this regard. Failure to submit returns timeously may lead to penalties, as well as interest accruing on their accounts due to SARS. Administrative non-compliance penalties specifically will be levied if a person has more than one annual income tax return outstanding.

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)

HOME OFFICE EXPENDITURE

a4_bWith current day realities manifesting in ever increasing distances required to be travelled to get to an office, traffic congestion, etc. more and more employers are opting to give their employees the option of working from home. The proliferation of “home offices” has surfaced in dramatic fashion in recent times. It is therefore only natural that we have been experiencing an increased number of queries related to whether expenditure linked to home offices are tax deductible. With home office expenditure, we refer here specifically to those costs linked to occupying a specific space in a home for purposes of earning an income. This includes typically rent, interest paid on a bond, repairs, maintenance and other related costs.

Limitations to deductions for tax purposes in relation to home office expenditure is specifically dealt with by section 23(b) of the Income Tax Act, 58 of 1962. In essence it determines that home office expenditure is not deductible save in very strict circumstances, being:

  • where the part of the home used is used exclusively and regularly used for purposes of the taxpayer’s trade; and
  • on condition that the space so used must also have been specifically equipped for this purpose.

Home office expenditure will moreover not be deductible where the trade exercised involves employment or the holding of an office (such as a director for example), unless either:

  • the income earned is in the form of commission or any similar type of variable payment, and on condition that the duties of employment or office held are performed primarily outside of an office environment provided by an employer; or
  • the employment/office duties viewed holistically are mainly performed in the designated part of the home.

If either of the above two exceptions are met, home office expenditure will be deductible irrespective thereof that the taxpayer is an employee or the holder of a specific office. It is noted that section 23(m)(iv) in this regard also does not operate to limit deductions of home office expenditure more than is already the case in terms of section 23(b). (Section 23(m) ordinarily operates as the onerous provision severely limiting the tax deductions available to salaried individuals.)

As a final comment it should be pointed out that the above tests linked to whether home office expenditure is deductible or not all involves objective tests. SARS is also known to be extremely strict in its application of section 23(b). The Tax Administration Act, 28 of 2011, by virtue of section 102 provides that the burden of proof for showing that a deduction should be allowed rests on the taxpayer. SARS is therefore under no obligation to disprove any of the requirements necessary to qualify for home office expenditure. Rather, the taxpayer should be able to show that the space in question is exclusively and regularly used for business purposes and that it has been specifically equipped therefor. It should further illustrate that income earned comprises mainly a variable form of compensation and that no other space is available to the taxpayer, or that the services are performed mainly from the designated space at home.

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)

TAX SEASON 2016: NON-PROVISIONAL TAXPAYERS’ DEADLINE

Many of our clients are not registered for provisional tax, nor are they required to be so registered. These non-provisional taxpayers should however take note thereof that their annual income tax returns (for the 2016 year of assessment which ended on 29 February 2016) are due shortly, and not only on 31 January 2017 as is the case for natural person taxpayers also registered for provisional tax.

All companies are automatically registered for provisional tax. Therefore, non-provisional taxpayers are typically individuals earning little or no income other than from a salary. These taxpayers therefore need to attend to their annual income tax returns with an increased sense of urgency to meet the looming deadline, which is 25 November 2016 for individuals filing returns by way of SARS’ eFiling system. (Those very few individuals who still submit returns manually should have filed their income tax returns by 23 September 2016 already.)

Government Gazette No. 40041 (dated 3 June 2016) identified those persons required to file annual income tax returns for the 2016 year of assessment. The primary exemption from the requirement to submit a return for tax resident natural persons is if the person earned only a salary from a single employer during the year which did not exceed R350,000, and income from interest for that person was also less than R23,800 (or R34,500 if the person is older than 65). The converse holds true though that if a person received income in excess of any of these amounts, they will be required to submit an income tax return for the 2016 tax year.

The Government Gazette also determines the dates by when the relevant persons are required to have submitted their returns by. Provisional taxpayers are annually afforded a slightly more lenient deadline to submit their income tax returns by as opposed to non-provisional taxpayers. This requires non-provisional taxpayers to be extra vigilant of the deadline to submit their annual income tax returns for the 2016 tax year by.

We therefore wish to remind our clients of their filing obligations with SARS and to contact us so that we may accumulate the information necessary to assist them in this regard. Failure to submit returns timeously may lead to penalties, as well as interest accruing on their accounts due to SARS. Administrative non-compliance penalties specifically will be levied if a person has more than one annual income tax return outstanding.

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)

REQUEST FOR SUSPENSION OF PAYMENT

The ‘pay now, argue later’ rule contained in section 164 of the Tax Administration Act, 28 of 2011, requires taxpayers to pay any tax debts due in terms of an assessment, irrespective thereof that the assessment in question may be disputed by the taxpayer. In other words – and as the name suggests – even where SARS has issued a taxpayer with an assessment in error, a taxpayer is still required to pay the tax reflected in that assessment irrespective, and will have to claim a refund for that amount only once the error has been corrected. This is obviously quite onerous to taxpayers, and may adversely affect cash flows even where a taxpayer is at no fault whatsoever, or where there is a misunderstanding of the relevant facts on SARS’ side.

Section 164 does offer a limited form of reprieve though, and taxpayers may request the suspension of payment of a tax liability pending the resolution of a dispute. The provision provides that the payment of tax may be suspended by SARS after considering the following factors:

  • whether the recovery of the disputed tax will be in jeopardy or there will be a risk of dissipation of assets;
  • the compliance history of the taxpayer with SARS;
  • whether fraud is prima facie involved in the origin of the dispute;
  • whether payment will result in irreparable hardship to the taxpayer not justified by the prejudice to SARS or the fiscus if the disputed tax is not paid or recovered; or
  • whether the taxpayer has tendered adequate security for the payment of the disputed tax and accepting it is in the interest of SARS or the fiscus.

Notwithstanding the above, SARS may deny a request for suspension of payment of tax, or revoke a decision to suspend payment, if it is satisfied that:

  • after the lodging of the objection or appeal, the objection or appeal is frivolous or vexatious;
  • the taxpayer is employing dilatory tactics in conducting the objection or appeal;
  • on further consideration of the factors referred to above, the suspension should not have been given; or
  • there is a material change in any of the factors upon which the decision to suspend payment of the amount involved was based.

What few people know is that merely by virtue of submitting an application to suspend the payment of tax, SARS is prohibited from instituting proceedings to recover the amount in dispute until it has duly considered the application to suspend payment of tax (which applications are typically considered by a designated committee within SARS). Only once such an application has been considered and denied may SARS institute recovery proceedings within 10 business days after the decision not to grant the relevant request. Therefore, suspension of payment is effectively achieved by submission of an application, and the status quo only affected once the taxpayer has been advised otherwise by SARS after it has duly considered the application and applied its mind thereto.

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)