Tag Archives: Tax

Dividends tax returns

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. 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. 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.

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.

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 residence for individuals

According to the South African Revenue Service (SARS), South Africa has a residence-based tax system, which means residents are, subject to certain exclusions, taxed on their worldwide income, irrespective of where their income was earned. By contrast, non-residents are taxed on their income from a South African source.

In an increasingly global society where individuals travel more freely across borders and are able to hold assets in various countries, it becomes important for individuals with ties to South Africa to have certainty whether they are a South African tax resident or not. If they are, their entire income earned from wherever in the world may potentially be taxed in South Africa.

Tax residence is not linked to migration status. In other words, irrespective of which country’s passport one carries, tax residence may still be established in South Africa by virtue of the domestic tests applied by the Income Tax Act.[1] In terms of that Act, an individual will be tax resident in South Africa if either that person meets the criteria of the “physical presence” test, or if that person is “ordinarily resident” in South Africa.

The physical presence test involves a day counting exercise whereby a person will be considered to be a South African tax resident if he/she has been present in the Republic for at least 91 days every year for 6 tax years, and that the days spent in the country in total over this period amounts to at least 915 days in total. If this test is met, the individual will be tax resident from the first day of the last year forming part of the 6-year period referred to.

The question whether a person is “ordinarily resident” in South Africa is a more involved one. The term as used in the Income Tax Act is undefined, but our courts have considered the term to refer to “… the country to which [an individual] would naturally and as a matter of course return from his [or her] wanderings”.[2] The test involves a facts-based and substantive inquiry that in essence involves a person being asked: Where do you consider home to be.

Tax residence is not only relevant for purposes of where a tax liability may arise, but also to understand what tax compliance related obligations may arise for an individual. It is therefore important for individuals not to confuse migration and tax residence status; the two rather have very little to do with one another.

Reference:

[1] See the definition of “resident” in section 1 of the Income Tax Act, 58 of 1962

[2] Cohen v CIR 1946 AD 174

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 free loans cross border

A consideration of the tax consequences of interest free loans will be incomplete if not also considered in the context of interest free debt funding being provided cross-border. Typically, when “cheap debt” is encountered it is in the form of low interest or interest free loans being provided to related parties (or “connected persons” as defined) due to the non-commercial nature of such an arrangement. This is especially the case for the lender, who could typically receive far greater returns on investment if utilising excess cash in another manner. However, due to group efficiencies, it may be preferable for one group company to provide low interest or interest free financing to a fellow group company, especially if this also has the potential to unlock certain tax benefits.

One such manner in which a corporate group may save on its ultimate tax bill is to ensure that funding is provided by a company situated in a low tax jurisdiction, such as Mauritius for example (which levies a corporate tax rate of effectively 3%). Were the Mauritius company to lend cash to a South African group company, the group would prefer it to do so at a very high rate. This would ensure that the South African company is able to deduct interest in a corporate tax environment where it would create a deduction of effectively 28%, whereas the tax cost would only be 3% in Mauritius.

Where the South African company however is in the position that it sits on the group’s cash resources, it would want to lend money to the Mauritius company at as low rate as possible. Interest, to the extent charged, will now only be deductible at an effective 3% in Mauritius (where the borrower is situated), whereas interest received will be taxed at 28% in South Africa. Such a loan would therefore be most tax efficiently structured as an interest free loan.

The transfer pricing regime, contained in section 31 of the Income Tax Act,[1] seeks to legislate against this tax avoidance behaviour. The provision, which covers all cross border transactions entered into by connected persons, but specifically also cross border debt financing, determines that in such instances “… the taxable income or tax payable by any person contemplated … that derives a tax benefit … must be calculated as if that transaction, operation, scheme, agreement or understanding had been entered into on the terms and conditions that would have existed had those persons been independent persons dealing at arm’s length.”

In other words, the tax consequences of cross border debt funding with connected persons will be calculated as though arm’s length interest rates would have been attached thereto. Therefore, even though the loan extended by the South African company above to the Mauritian company would have been interest free in terms of the financing agreement, the South African company will still be taxed in South Africa as though it has received interest on arm’s length terms. The same is true for the exaggerated rates that may have been charged had the South African company been the lender: SARS would adjust these rates downward to ensure that the South African company does not claim inflated interest costs.

Using interest free or low interest loans as a tool to increase tax efficiency, especially in a cross border context, much be approached with circumspection. It may very often amount to a blunt and clumsy tax planning tool at best.

[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)

Interest free loans with companies

The latest annual nation budget presented in Parliament proposed the dividends tax rate to be increased with almost immediate effect from 15% to 20%. The increased rate brings into renewed focus what anti-avoidance measures exist in the Income Tax Act[1] that seeks to ensure that the dividends tax is not avoided.

Most commonly, the dividends tax is levied on dividends paid by a company to individuals or trusts that are shareholders of that company. To the extent that the shareholder is a South African tax resident company, no dividends tax is levied on payments to such shareholders.[2] In other words, non-corporate shareholders (such as trusts or individuals) may want to structure their affairs in such a manner so as to avoid the dividends tax being levied, yet still have access to the cash and profit reserves contained in the company for their own use.

Getting access to these funds by way of a dividend declaration will give rise to such dividends being taxed (now) at 20%. An alternative scenario would be for the shareholder to rather borrow the cash from the company on interest free loan account. In this manner factually no dividend would be declared (and which would suffer dividends tax), no interest accrues to the company on the loan account created (and which would have been taxable in the company) and most importantly, the shareholder is able to access the cash of the company commercially. Moreover, since the shareholder is in a controlling position in relation to the company, it can ensure that the company will in future never call upon the loan to be repaid.

Treasury has for long been aware of the use of interest free loans to shareholders (or “connected persons”)[3] as a means first to avoid the erstwhile STC, and now the dividends tax. There exists anti-avoidance legislation; in place exactly to ensure that shareholders do not extract a company’s resources in the guise of something else (such as an interest free loan account) without incurring some tax cost as a result.

Section 64E(4) of the Income Tax Act provides that any loan provided by a company to a non-company tax resident that is:

  1. a connected person in relation to that company; or
  2. a connected person of the above person

“… will be deemed to have paid a dividend if that debt arises by virtue of any share held in that company by a person contemplated in subparagraph (i).” (own emphasis)

The amount of such a deemed dividend (that will be subject to dividends tax) is considered to be effectively equal to the amount of interest that would have been charged at prime less 2.5%, less so much of interest that has been actually charged on the loan account.

It is important to also appreciate that the interest free loan capital is not subject to tax, but which would also have amounted to a once-off tax only. By taxing the interest component not charged, the very real possibility exists for the deemed dividend to arise annually, and for as long as the loan remains in place on an interest free basis.

[1] 58 of 1962
[2] Section 64F(1)(a)
[3] Defined in section 1 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)

 

New proposed tax amendments

National Treasury releases proposed amendments to tax legislation on an annual basis. Some of the most important of these are already foreshadowed when the Minister of Finance delivers his budget speech in Parliament. The proposals made in that Budget Review are then formalised into proposed draft tax legislative amendments in the form of the Draft Taxation Laws Amendment Bill and the Draft Tax Administration Laws Amendment Bill.

This year, after the budget speech on 24 February earlier this year, the proposed amendments were released by Treasury on 8 July 2016. We set out below some of the more significant proposed amendments:

  • As announced in the budget speech, targeted anti-tax avoidance legislation is introduced as relates to trusts. However, Treasury has opted to retain the conduit pipe principle many feared would disappear, and proposes to target interest free loans made to trusts instead;
  • Further refinements to the harmonisation of the tax treatment of withdrawals from pension, provident and retirement annuity funds;
  • Repeal of the withholding tax on foreign service fees paid by SA tax residents;
  • As a result of the very complex and targeted anti-tax avoidance legislation linked to employee share incentive schemes, almost every year amendments are required to close new tax structures set up to reduce the tax consequences of these reward programmes as they relate to employees. This year is no different with certain targeted new anti-avoidance measures being proposed to the taxation of these schemes upon termination, as well as the taxation of dividends paid out on these shares throughout;
  • Significant amendments are introduced to the existing hybrid equity and debt instrument provisions in sections 8E to 8FA of the Income Tax Act, 1962. Most notably, the treatment of interest on subordinated debt as dividends for tax purposes have been addressed as relates to intra-group debt or cross-border debt issued to a South African tax resident;
  • Further relaxation of the rules as relates to venture capital companies are proposed to further entice taxpayers to make use of this very beneficial income tax incentive regime;
  • The Customs and Excise Act, 1964, is to have its own general anti-avoidance rules introduced as section 119B; and
  • A new understatement penalty category is proposed for a transaction to which the general anti-avoidance provisions in the Income Tax Act, 1962, or Value-Added Tax Act, 1991, are applied.

The public is invited to comment on the proposed changes by 8 August 2016. Please contact us should any of the above be of particular relevance to you and should it appear necessary to discuss these prior to these draft bills being passed by Parliament, very probably later this year.

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)

How South African dividends are taxed

Dividends received by a South African taxpayer are generally exempt from income tax. The major exemption though being dividends received from so-called REITs (these being some of the major property owing companies listed on the JSE (such as for example Redefine Properties Ltd). Dividends received from REITs are not exempt from income tax, and will be subject to income tax in the hands of the recipient taxpayer. (Refer section 10(1)(k)(i) of the Income Tax Act, 58 of 1962.)

However, for ‘normal’ non-REIT dividends, merely since dividends are income tax exempt does not mean that dividends are not subject to any tax whatsoever. Dividends are still subject to the dividends tax, which is a tax levied at 15% of dividends received, and are taxed in the hands of the recipient taxpayer. The tax also operates as a withholding tax; in other words the tax is withheld by the company declaring the dividend and paid over by it directly to SARS on the taxpayer’s behalf. For example, imagine that a company declares a dividend of R100 to a shareholder. Of this amount, only R85 is paid over to the shareholder, with the remaining R15 being paid to SARS on the taxpayer’s behalf.

There are however numerous classes of persons which are exempt from the dividends tax, in which case dividends tax need not be withheld by the dividend declaring company if dividends are declared to these identified persons. The most commonly used of these exemptions is that used by South African companies: they are exempt from dividends tax. In other words, in the example above, if a South African company is the shareholder receiving a dividend, no dividends tax would need to be withheld and paid over to SARS. In addition, the dividend should not be subject to income tax either. The prerequisite for the exemption from dividends tax specifically to apply though is that the exempt entity, such as a company-type shareholder, must inform the investee (or dividend declaring) company that it is such an exempt entity. In other words, the assumption exists that a shareholder is not exempt from the dividends tax, until the declaring company is informed otherwise.

 As a result, it may be beneficial for non-exempt entities (such as trusts or individuals) to hold their share portfolios through a wholly-owned company. Beside the added benefits attaching themselves to using a privately owned company through which to hold a shares in companies (such as securing these from attachment by the individual/trust’s current or contingent creditors, or to ensure more efficient management of a portfolio of investments) a company also offers the opportunity to receive returns on investments in the form of dividends more tax efficiently. South African dividends received by a South African company will most likely not be subject to either income tax or dividends tax. Dividends tax considerations are of course not the only factor to take into consideration before such a decision is made, and professional advice should best be obtained from a professional to ensure that correct structuring decisions are made.

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)

Financial assistance to directors

A company lending money to its directors may not be as simple a process as it may initially appear to be – not even in the case of so-called “one-man” companies. There are various requirements in the Companies Act, 71 of 2008, to be adhered to, as well as certain potential pitfalls in the Income Tax Act, 58 of 1962, that one should be aware of.

Section 45 of the Companies Act regulates the lending of money by companies to their directors. The scope of the provision also extends much further than a loan itself: it covers any form of “financial assistance” to directors, which specifically includes “lending money, guaranteeing a loan or other obligation, and securing any debt or obligation”.

The board of directors of a company must authorise the financial assistance to be provided to a director, and the board resolution to this effect must be circulated to all shareholders as well as trade unions representing employees of the company. The company’s board must further be satisfied that the financial assistance is fair and reasonable to the company, and further that the company will be solvent and liquid thereafter. They must also ensure that this is not in contravention of the company’s Memorandum of Incorporation. If in breach of any of these conditions, the directors may potentially be held personally liable for any damages.

From a tax perspective, a director of a company is by definition also an employee of that company. This means that the director may be liable for tax on a fringe benefit if a loan is extended to him or her which does not bear market-related interest rates. For purposes of the Income Tax Act, this will be the case where the loan bears interest at less than the repo rate plus 100 basis points (see paragraph 11(1) of the Seventh Schedule to the Income Tax Act). The value of any such fringe benefit will be included in the director’s gross income for tax purposes and taxed accordingly.

Fringe benefits are not the only potential tax concern for companies with loan accounts in favour of themselves against a director. Quite often directors are also shareholders in a company (which is especially the case for small and medium-sized companies). In this case, an interest free loan, or one with interest below the repo rate plus 100 basis points, will give rise to a deemed dividend in the hands of the director-shareholder. Effectively, the deemed dividend will be the interest charged too little. This amount will be calculated on an annual basis, and attract dividends tax at 15% (section 64E(4) of the Income Tax Act) which will be for the director’s account.

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:

  • l whether the recovery of the disputed tax will be in jeopardy or there will be a risk of dissipation of assets;
  • l the compliance history of the taxpayer with SARS;
  • l whether fraud is prima facie involved in the origin of the dispute;
  • l 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
  • l 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:
  • l after the lodging of the objection or appeal, the objection or appeal is frivolous or vexatious;
  • l the taxpayer is employing dilatory tactics in conducting the objection or appeal;
  • l on further consideration of the factors referred to above, the suspension should not have been given; or
  • l 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).

Donations Tax

Donations tax is levied in terms of section 54 of the Income Tax Act, 58 of 1962 (‘Income Tax Act’). The rate of tax is currently at 20%, and is levied on the value of any property donated by South African tax residents. The tax is levied on the donor, although the Income Tax Act does make provision for the tax to also be recovered from the person receiving the donation in certain instances if the donor fails to pay the requisite amount of tax.

It is no coincidence that the tax is levied at exactly the same rate as Estate Duty is. It therefore acts as an effective anti-avoidance measure for Estate Duty to ensure that an estate is not reduced by way of donations by a person in anticipation of death and in order to escape the Estate Duty.

A donation could either arise by virtue of a gratuitous disposal of property, or where property has been disposed of for less than adequate consideration. It should be noted that a donation is defined in the Income Tax Act as to specifically include any ‘gratuitous waiver or renunciation of a right’. This implies that the donations tax also potentially comes into play where a loan is waived.

Several exemptions from the tax apply though. These general exemptions include:

  • Donations between spouses;
  • Awards given to employees;
  • Donations to public benefit organisations;
  • Distributions by a trust to its beneficiaries; and
  • Donations between a ‘group of companies’.

In addition to the above, any bona fide contribution to the maintenance of any person considered to be reasonable by the Commissioner will not attract donations tax. Similarly, a natural person is allowed to annually donate property to the value of R100,000 donations tax free, whilst companies are permitted donations in the form of so-called ‘casual gifts’ of up to R10,000 during a tax year without incurring a liability towards donations tax.

Donations tax is also levied on more than only donations as such. The tax is also levied on property which has been disposed of in exchange for less than what the Commissioner would consider to be adequate consideration. These ‘part donations’ would therefore also attract donations tax. For example, if a person were to sell an asset worth R1 million for R500,000, that sale would potentially attract donations tax. The donations tax would however only be levied on so much as is the difference between what would be considered to have been adequate consideration and the amount paid for the asset disposed of (in the above example, donations tax of R100,000 would thus arise). The donations tax would not apply though where an asset is disposed of at a discount which has been granted for commercial considerations.

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).

SARS Retention Periods: Are you keeping your tax-related records long enough?

How long must I keep my tax records? When can I throw old tax-related documents away? What happens if SARS request supporting documents and I don’t have it anymore? Specific tax laws lay down certain obligations regarding the retention periods of tax-related documentation. This article discusses tax retention periods as set out in the Tax Administration Act (TAA).

Who should keep tax records?

The following persons must keep tax records:

  • Anyone who submitted a tax return;
  • l Someone who should have submitted a tax return but didn’t;
  • l Any person who was not required to submit a tax return because they earned exempted income or taxable income which was below a tax threshold.

How long must records be kept?

A taxpayer who submitted a tax return must keep the relevant records for five years after the return’s submission date.

When a person should have submitted a tax return but didn’t, they must keep tax records until the return is submitted. After the return has been submitted, the records should be kept for five years from the submission date.

If a person was not required to submit a tax return because they earned income which was either exempted or below a tax threshold, such a person must keep their tax records for five years after the last day of the relevant tax period.

Where a person is either aware or has been notified that their tax records will be audited or investigated, such records must be kept for the longest of the following periods:

  • Five years from the return’s submission date if a return was submitted;
  • Five years from the end of the tax period if the taxpayer was not required to submit a return; or

l Until the audit or investigation has been finalized.

When a taxpayer lodged an objection or appeal against the assessment of a tax return or a decision made by SARS in terms of the TAA, the relevant records must be kept for the longest of the following periods:

  • Five years from the return’s submission date if a return was submitted;
  • Five years from the end of the tax period if the taxpayer was not required to submit a return; or
  • Until the assessment or decision has been finalized.

In what format must records be kept?

Tax records must be kept either in their original form, a form authorized by a senior SARS official for a specific taxpayer upon request from the taxpayer, or the form prescribed by the Commissioner in a public notice.

What happens if records are not kept?

In terms of the TAA, if a taxpayer fails or neglects to keep the required tax records, they have committed a criminal offence and could also be liable for an administrative non-compliance penalty.

SARS inspections

Taxpayers are obliged by law to keep tax records in South Africa available for inspection by SARS. SARS may make unannounced inspections of tax records to determine whether the necessary records have been kept for the specified retention periods. Records must be kept in a safe place, in an orderly way and be open for inspection, audit or investigation by SARS.

This article discussed general retention periods of records as set out in the TAA. The specific tax records to be kept to satisfy SARS requirements are specified in the different tax acts, e.g. the Income Tax Act or the VAT Act. For more information about which specific records must be kept, please consult the relevant acts or your tax practitioner.

Reference List:

Accessed on 23 August 2015:

  • SAICA Guide on the Retention of Records (Updated October 2013)

Accessed on 2 September 2015:

  • SARS Short Guide to the Tax Administration Act, 2011 (Act No. 28 of 2011) – SARS Version 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).