Author: Nyasha Musviba

Capital v Revenue: the taxpayer prevails – ommissioner for the South African Revenue Service v Capstone 556 (Pty) Ltd (20844/2014) [2016] ZASCA 2 (9 February 2016)

Nyasha Musviba

The question of whether an amount constitutes capital or revenue in a specific instance, is an issue that our courts have grappled with on many occasions. In Commissioner for the South African Revenue Service v Capstone 556 (Pty) Ltd (20844/2014) [2016] ZASCA 2 (9 February 2016), the Supreme Court of Appeal (SCA) had to deal with this very issue. The SCA had to decide two questions: whether the share sale of the taxpayer, Capstone, of approximately 17.5 million shares in JD Group Ltd (JDG), through which it made a profit of R400 million, constituted revenue or was capital in nature; and whether an indemnity settlement paid by the taxpayer after it had sold the shares, formed part of the base cost of the shares for purposes of capital gains tax (CGT).

OECD Proposed expansion of “permanent establishment” definition

Nyasha Musviba

Author: Annalie Pinch and Nicolette Smit. During October 2015, as part of the Organisation for Economic Co-operation and Development (“OECD”)/G20 Base Erosion and Profit Shifting (“BEPS”) Project, the OECD issued its final report in respect of Action 7 “Preventing the artificial avoidance of permanent establishment status” (“BEPS Report”). In terms of Article 7(1) of the OECD’s Model Tax Convention on Income and on Capital (“Model Tax Convention”), a Contracting State will only have taxing rights in respect of the business profits of a foreign enterprise which is a resident of another Contracting State if the enterprise has a “permanent establishment” (“PE”), as defined in Article 5, in that State to which such profits are attributable.

SARS MEDIA STATEMENT – Special Voluntary Disclosure Programme in respect of offshore assets and income

Nyasha Musviba

In the 2016 Budget Speech, the Minister of Finance announced a Special Voluntary Disclosure Programme to give opportunity for non-compliant taxpayers to voluntarily disclose offshore assets and income. With a new global standard for the automatic exchange of information between tax authorities providing SARS with additional information from 2017, time is now running out for taxpayers who still have undisclosed assets abroad. To encourage compliance, Government proposes a Special Voluntary Disclosure Programme for individuals and companies to regularise both their tax and exchange control affairs for a limited window period described below. The South African Revenue Service (SARS) and the South African Reserve Bank (SARB) are working jointly to ensure that applications for the Special Voluntary Disclosure Programme are assessed through one joint process for both tax non-compliance and exchange control contraventions.

South African budget takes aim at hybrid debt instruments, share buybacks

Nyasha Musviba

Author: Peter Dachs (MNE Tax). South Africa’s Minister of Finance has announced tax changes affecting business in the 2016 budget, including a measure to curb perceived abuses associated with hybrid debt instruments and a warning about future action on share buybacks Under South African domestic law, hybrid debt instruments, i.e. debt instruments with certain equity features, result in the return thereon being treated as a tax-exempt dividend. The budget, issued February 24, states that with immediate effect in circumstances where a nonresident issuer obtains a tax deduction for a payment on a hybrid debt instrument, the South African taxpayer receiving the return will be taxable thereon.

Budget 2016 South African budget speech summary | tax proposals

Nyasha Musviba

Overview The Honourable Minister of Finance read the 2016 South African budget speech on 24 February 2016. In this summary, we address only the revenue (i.e. tax) side of the budget proposals. As this budget speech has received an unusual amount of interest, we have set out the tax proposals in more detail than usual, although this summary is not intended to be comprehensive. The economic growth outlook for 2016 has been revised down to 0.9%. Tax revenues are projected to be R11.6-billion down; corporate tax is estimated to be R13-billion down; value added tax (“VAT”) is to be R5.7-billion down and personal income tax R1.9-billion down. On the other hand, customs duties should increase by R4.3-billion.

Experts hail withdrawal of ‘unworkable’ withholding tax

Nyasha Musviba

Author: Amanda Visser (BDlive). The withdrawal of a withholding tax on service payments to foreigners, decried by many as unworkable, has been widely welcomed. The Treasury acknowledged that the tax had introduced “unforeseen issues, uncertainty on the application of domestic law and taxing rights under tax treaties”. The withholding tax was introduced into legislation in 2013 but its operation was postponed on several occasions. It was due to come into effect in January next year but will now be withdrawn from legislation.

SARS looks to clear up misconceptions relating to tax exemption for foreign employment income

Nyasha Musviba

The South African Revenue Service (SARS) issued Draft Interpretation Note 16 (Issue 2) (Draft IN) for public comment recently. When compared to the current Interpretation Note 16 (IN16), the Draft IN indicates a marked shift, on certain aspects, in SARS’s interpretation of the tax exemption that applies to foreign employment income, under s10(1)(o)(ii) of the Income Tax Act, No 58 of 1962 (Act).

The intentional creation of hybrid debt instruments that result in interest being deemed to be dividends

Nyasha Musviba

Author: Emil Brincker Section 8F and s8FA of the Income Tax Act have been promulgated with a view to convert interest into dividends. These sections deal with a scenario where the debt instrument displays a number of equity characteristics, for instance if amounts are only payable if the assets of the issuer exceed its liabilities and/or where interest is not calculated with reference to the time value of money. Unfortunately a number of transactions have been implemented which make use of the intentional recharacterisation of the interest into dividends.