Author: Nyasha Musviba

Share block schemes are defined in the Share Blocks Control Act 59 of 1980 (SBC Act) as “any scheme in terms of which a share, in any manner whatsoever, confers a right to or an interest in the use of immovable property”. In a nutshell, share block schemes can be described as an alternative form of property ownership and allow a single company – referred to as a ‘share block company’, to own a particular development. Individuals who become shareholders within the share block company are allowed to buy the right to use a specific unit or space within the development. Purchasers individually buy a grouping or block of shares which grants the holder specific rights. The share block company acquires ownership and title to the property by means of a registered title or by renting the land from the owner. These companies must specifically include the expression “share block” Read More …

Is the revenue authority obliged to comply with unlawful instructions from National Treasury? Recently, the High Court had to answer this question in Republic v Commissioner of Domestic Taxes & Ex-Parte London Distillers (K) Limited [2022] eKLR. Brief facts In a letter dated 15 September 2021, LDK applied to the Cabinet Secretary for National Treasury and Planning for the abandonment of KES 517,118,680 which LDK had collected as excise duty in the course of its business. National Treasury allowed the application and approved the abandonment of 80% of the outstanding principal excise duty and waived 100% of the penalties and interest. Subsequently, the KRA wrote to LDK acknowledging the outcome of the abandonment and demanding a sum of KES 80 million, being the 20% outstanding tax arrears. The KRA and LDK agreed on the settlement of the said amount in weekly instalments of KES 7,500,000 beginning on 2 February 2022. Read More …

Farming and agriculture form the lifeblood of any economy. It is no wonder that the Income Tax Act 58 of 1962 (Act) provides for a special set of beneficial rules applicable to farmers in South Africa. This special taxation regime is by and large set out in the First Schedule to the Act. Even though the South African Revenue Service (SARS) has already issued an interpretation note on “Game Farming”, namely Interpretation Note 69, SARS has previously not provided an extensive explanatory note or guide on the First Schedule. Farmers would therefore have welcomed the publishing of the SARS Draft Guide on the Taxation of Farming Operations on 22 September 2022 (Draft Guide). This article discusses some of the key guidance notes contained in the Draft Guide. Meaning of farming operations In order for the special tax regime in the First Schedule to apply there are a number of requirements Read More …

Subject to certain exemptions and exceptions, value-added tax (VAT) is levied at the standard rate of 15% on the supply of goods or services by a vendor in the course or furtherance of the vendor’s enterprise. However, the supply of an enterprise or part of an enterprise as a going concern may be subject to VAT at the zero rate provided that certain requirements, as stipulated in section 11(1)(e) of the Value-Added Tax Act 89 of 1991 (VAT Act), are complied with. In terms of section 11(1)(e), the supply of an enterprise or part thereof, which is capable of separate operation may be subject to VAT at the zero rate, provided that the seller and purchaser are both registered vendors; the supply consists of an enterprise or part of an enterprise capable of separate operation; the parties agree in writing that the supply is a going concern; the parties, at Read More …

Before discussing BRP 379, it is worthwhile revisiting section 8E and section 8EA of the Income Tax Act 58 of 1962 (ITA). A thorough discussion of these sections falls outside the scope of this article. However, we wish to briefly discuss the effect of these sections before discussing BRP 379. Section 8E and section 8EA of the Income Tax Act Before discussing BRP 379, it is worthwhile revisiting section 8E and section 8EA of the Income Tax Act 58 of 1962 (ITA). A thorough discussion of these sections falls outside the scope of this article. However, we wish to briefly discuss the effect of these sections before discussing BRP 379. The effect of section 8E and 8EA of the ITA is that if the requirements of section 8E(2) or section 8EA(2) of the ITA are met, dividends received by a person are deemed to be income. Simply put, section 8E(2) Read More …

At their inception, most businesses have nothing but their names on their back and a bit of property to kickstart their operations. As employees join the business and begin contributing their time and innovative ideas, these eventually drive up the business’ unique selling point and ultimately, its value in the market. When these employees look to leave the business, it may cause a decrease in its value in relation to what those employees do with the confidential information they had access to in the course of their employment. In an attempt to protect this value, employers may enter into restraint of trade agreements with exiting employees where the employees will receive financial compensation in exchange for refraining from engaging in a particular activity in a particular area for a period of time. The importance of the categorisation of these payments in one’s tax returns was highlighted in the case of Read More …

On 26 October 2022, the Minister of Finance (Minister) delivered the Medium-Term Budget Policy Statement (MTBPS). While it appears that the MTBPS speech was generally positively received, from a tax and tax policy perspective, there were also some interesting announcements. Tax collections The Minister indicated that since the 2022 Budget, revenue collection has exceeded projections and the gross tax revenue estimate for 2022/23 has been revised upwards by R83,5 billion, to R1,68 trillion. It was indicated that the reasons for this higher estimate are largely the improvements made in corporate income tax collections, with strong receipts from the finance and manufacturing sectors. What is interesting about this is that the amendments to the Income Tax Act 58 of 1962 that came into effect earlier this year, specifically the reduction of the corporate income tax rate to 27% and concomitant interest deductibility and limitation of assessed losses amendments, were aimed at Read More …

By Joon Chong, Partner at Webber Wentzel. After wide consultation, National Treasury and SARS have made some changes and clarifications to the original proposals on introducing a “two pot” retirement system On 29 July 2022, the 2022 Draft Revenue Laws Amendment Bill was released for public comment, setting out proposals for implementing a new “two-pot” retirement fund system to provide more flexibility for members. The public comments period closed on 29 August, with National Treasury (Treasury) receiving written comments from 27 organisations and 80 individuals. There have also been workshops and discussions with the Standing Committee on Finance about these proposals. Broadly, the plan in the draft bill is to create two “pots” for retirement fund members. From the date the new system comes into effect, members will be able to make one taxable withdrawal a year from their “savings pot” (one-third of contributions), but the “retirement pot” (the other Read More …

The dispute resolution process contained in the Tax Administration Act 28 of 2011 (TAA), and the Rules of the Tax Court (Rules), is designed to allow SARS and taxpayers to engage on the subject of a dispute in a structured manner, aimed at ventilating the dispute between the parties. This maximises the potential for a reduction in the scope of disagreement, and potentially the resolution of the dispute. The recent case of F Taxpayer v CSARS (Case No: IT 45842, 25 February 2022) (F Taxpayer Case), determined whether delays by SARS in engaging with the dispute resolution process set out in the TAA, culminating in the late submission of its rule 31 statement of grounds of assessment and opposing appeal, was grounds for a final bar to SARS pursuing the dispute. It also highlighted whether the taxpayer ought to be granted a final decision on the appeal for relevant years Read More …

In the last few weeks, many South Africans have been affected by the extreme weather and flooding around the country, particularly in KwaZulu-Natal. While government intervention is required to alleviate the harm and impact on affected South Africans, effective alleviation of their plight will require collaboration between Government and civil society, such as charitable organisations. For civil society organisations, including charities, to assist most efficiently, it is crucial that our tax laws relieve them of the tax burden that they would otherwise incur, which in South Africa is done by way of the tax dispensation applicable to public benefit organisations (PBOs). In XY Mining v The Commissioner for the South African Revenue Service (Case No IT25390) (as yet unreported), the Tax Court summarised this as follows: “a PBO by designation exists to relieve the state of certain burdens. Accordingly, only those organisations that qualify as PBOs should be released from Read More …