Month: September 2016

PROVISIONAL TAX FOR INDIVIDUALS: DID YOU KNOW?

my-lawyer_images_sept-05Provisional tax is not a separate type of tax but pre-payments on income tax for a specific tax year. The aim of provisional tax payments is to help taxpayers to fulfil their tax responsibilities by spreading tax payments over a tax year. After SARS has assessed a taxpayer for income tax, the provisional tax payments will be set off against the final liability for income tax for a specific tax year.

Underpayment of provisional tax

If a taxpayer did not pay enough provisional tax during the tax year and there is a liability after offsetting provisional tax against income tax due on assessment, the taxpayer will be liable for penalties and interest on underpayment of provisional tax. The table below provides more information on the penalties and interest applicable to the underpayment of provisional tax.

Overpayment of provisional tax

If provisional tax was overpaid, i.e. provisional tax payments were more than the assessed income tax liability for a tax year, the excess amount will be refunded to the taxpayer with interest. Please refer to the table below for more details on overpayment of provisional tax.

Three provisional tax returns per tax year

The provisional tax return/IRP6 must be submitted two or three times per year, depending on the circumstances of the taxpayer.

The following table sets out the deadlines, penalties and interest, and calculations for the different provisional tax payments for the current tax year starting on 1 March 2015 and ending on 29 February 2016.

Description First provisional tax return – IRP6 (compulsory) Second provisional tax return – IRP6 (compulsory) Third provisional tax return – top-up payment – IRP6(3) (optional)
Deadline for submission and payment (if applicable) of IRP6 return 31 August 2015 29 February 2016 30 September 2016
Taxpayer fails to submit provisional tax return (IRP6) SARS may estimate taxable income and amount of tax payable N/A
Penalty payable by taxpayer on late payment of provisional tax 10% of amount paid late
Interest payable by taxpayer on late payment of provisional tax Variable rate published in the Government Gazette from time to time
Penalty payable by taxpayer on under-estimated provisional tax 20% of amount under-estimated
Interest payable by taxpayer on under-estimated provisional tax (interest is not tax-deductable) Variable rate published in the Government Gazette from time to time
Interest payable by SARS to taxpayer on over-estimate of provisional tax (interest is taxable) Variable rate published in the Government Gazette from time to time (normally 4 percentage points less than the above interest rates)
SARS’ suggested guidelines for the calculation of provisional tax payments Half of total tax on estimated taxable income for the tax year Total tax on estimated taxable income for the tax year Total tax on estimated taxable income for the tax year
Less: PAYE for the first 6 months of the tax year Less: PAYE for full tax year (12 months) Less: PAYE for full tax year (12 months)
Less: Foreign tax credits (if applicable) Less: Foreign tax credits (if applicable) Less: Foreign tax credits (if applicable)
Less: First provisional tax payment Less: First provisional tax payment
Less: Second provisional tax payment
First provisional tax payment due (note 1) Second provisional tax payment due (note 1) Third provisional tax payment due

Note 1: If there is not provisional tax due, the IRP6 return must still be submitted.

As can be seen from the above table, provisional tax payments are based on an estimate of the taxpayer’s taxable income. Therefore it is crucial to estimate taxable income and tax-deductible expenses as accurately as possible.

Reference:

www.sars.gov.za

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

DEALING WITH A DIFFICULT DEBTOR

my-lawyer_images_sept-04Going about collecting debt can be a stressful and confusing business. It only gets more frustrating when someone who owes you money doesn’t pay it back. If someone does owe you money (a debtor), then there are certain legal steps that can be taken to ensure you get your money back.

Taking legal action against a debtor can be an expensive and time-consuming process, hence the importance of having sound legal advice or the help of an attorney who specialises in debt collection.

An important point to remember is that you should have a legal agreement with the debtor in place before you seek legal action. If not, the process may be far more difficult than you’d have imagined or worse, it could backfire in your direction.

Where can debts be claimed?

Debts can be claimed in the High Court, for debts that are above R300 000. Amounts between R100 000 and R300 000 must be claimed in the Regional Court and amounts under R100 000 must be claimed in the Magistrate’s Court.

What must I do to get my money back?

When claiming a debt, the first thing to do is send a letter of demand to the debtor. The letter should include all the necessary information of the debt such as the details of the transaction, the amount outstanding and the due date for payment. This letter can also contain a threat of legal action should the debtor not pay by the due date.

If the debtor decides to ignore the letter and the threat, then you can institute legal action to recover the money. If you believe it’s not worth it or not possible to recover the full amount, then you can write the debt off, making sure you remember never to give that person money again.

An attorney can help with the process of collecting a debt. It’s important to always consult an attorney about an outstanding debt before taking any action. If you don’t enlist the help of professional attorneys, especially when you are owed a lot of money, you may end up not getting your money back at all from a lack of legal expertise. Furthermore, if you lose a court case, you may also end up paying the other person’s legal fees.

After a letter of demand is sent to the debtor, and they do not pay by the due date, then a summons will be served to them by the Sheriff of the Court. Ten days after the summons has been served, an attorney will take judgement in court against the debtor.

The following process for claiming a debt only applies to those who do not adhere to the National Credit Act (NCA). Businesses that sell credit, for example, will have other requirements to fulfil according to the NCA. All claims must be instituted within three years if you want to get your money back.

Reference:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAPITAL GAINS TAX AND THE SALE OF A PROPERTY

my-lawyer_images_sept-03Capital Gains Tax was introduced on 1 October 2001. Capital Gains Tax is payable on the profit a seller makes when disposing of his property.

What is meant by Capital Gain?

A person’s capital gain on an asset disposed of is the amount by which the proceeds exceed the base cost of that asset.

What is base cost?

The base cost of an asset is what you paid for it, plus the expenditure. The following can be included in calculating the base cost:

  1. The costs of acquiring the property, including the purchase price, transfer costs, transfer duty and professional fees e.g. attorney’s fees and fees paid to a surveyor and auctioneer.
  2. The cost of improvements, alterations and renovations which can be proved by invoices and/or receipts.
  3. The cost of disposing of the property, e.g. advertising costs, cost of obtaining a valuation for capital gains purposes, and estate agents’ commission.

How was base cost of assets held calculated before 1 October 2001?

If the property was acquired before 1 October 2001 you may use one of the following methods to value the property:

  1. 20% x (proceeds less expenditure incurred on or after 1 October 2001).
  2. The market value of the asset as at 1 October 2001, which valuation must have been obtained before 30 September 2004.
  3. Time-apportionment base cost method. (Original cost (proceeds – original cost) x number of years held before 1 October 2001) divided by (the number of years held before 1 October 2001 number of years held after 1 October 2001).

How is Capital Gains Tax paid?

Capital Gains Tax is not a separate tax from income tax. Part of a person's capital gain is included in his taxable income. It is then subject to normal tax. A portion of the total of the taxpayer's capital gain less capital losses for the year is included in the taxpayer's taxable income and taxed in terms of normal tax tables.

How is Capital Gain calculated?

If you are an individual, the first R30 000 of your total capital gain will be disregarded. Then 33.3% of the capital gain made on disposal of the property must be included in the taxable income for the year of assessment in which the property is sold. When the property is owned by a company, a close corporation or an ordinary trust, 66.6% of the capital gain must be included in their taxable income.

Primary residence and Capital Gains Tax

As from 1 March 2012 the first R2 million of any capital gain on the sale of a primary residence is exempted from Capital Gains Tax. This exemption only applies where the property is registered in the name of an individual or in the name of a special trust. The property should furthermore not exceed 2 hectares. If the property is used partially for residential and partially for business purposes, an apportionment must be done.

If more than one person holds an interest in a primary residence, the exclusion will be in proportion to the interest held by each party. For example, if you and your spouse have an equal interest in the primary residence, you will each qualify for a primary residence exclusion of R1 million. You will also be entitled to the annual exclusion, currently R30 000.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

YOUR WILL: AN IMPORTANT DOCUMENT

my-lawyer_images_sept-02Life is unpredictable, therefore we advise our clients to lose no time in drawing up their will and planning their estate. Below are important reasons why this should be one of your top priorities.

Q: Why should I have a will?

A: A will enables you to name your heirs. Should you die without a will (intestate) your assets will be divided according to the Intestate Succession Act. That may advantage people whom you did not wish to name as heirs.

Q: Who is allowed to sign your will as witness?

A: Your will must be signed in the presence of two witnesses, who also sign in each other’s presence. Only persons older than 14 years are qualified to sign as witnesses.

Q: What is the cost of Executor’s fees?

A: The maximum remuneration payable to an Executor is determined by law and is currently fixed at 3.5% of the total gross estate value. Executor’s fees should, however, be negotiated with the person who has been appointed as Executor of your will.

Q: How often should I revise my will?

A: It is recommended that wills be revised at least every 2 years. It is also important to review your will after events like marriage, birth, divorce or the purchase of property.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

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