Lights, camera, action! The tax exemption in respect of films

Authors: Nandipha Mzizi and Louis Botha. From the beginning of the production stage to the actual editing of the final film and exhibition, the industry contributes to the economy, revenue, job creation and economic activity. The results from the economic impact modelling report for 2017, prepared by Urban-Econ Development Economists for the National Film and Video Foundation (NFVF) (NFVF Report), reveal that the film industry has had a positive economic impact on the South African economy. During the 2016/17 financial year, the film industry in South Africa had a direct impact of R4,4 billion on economic production. The NFVF Report also revealed that the operations of the film industry in South Africa raised the level of production by approximately R12,2 billion in total.

Increase of provisional tax estimates by SARS

Authors: Annalie Pinch and David Marais. In terms of paragraph 19(1)(b) of the Fourth Schedule to the Income Tax Act, 5, 1962 (the Fourth Schedule), every company that is a provisional taxpayer shall, during every period within which provisional tax is or may be payable by it as provided in terms of the Fourth Schedule, submit to the Commissioner of the South African Revenue Service (SARS), a return of an estimate of the total taxable income which will be derived by the company in respect of the year of assessment in respect of which provisional tax is or may be payable by the company.

Tax treatment of conversion of debt into equity and the artificial repayment of debt

Author: Jerome Brink (Associate at Cliffe Dekker Hofmeyr). The Income Tax Act, No 58 of 1962 (Act) contains rules dealing with the manner in which a taxpayer must account for the benefit derived from the waiver, cancellation, reduction or discharge of a debt owed by that taxpayer. The tax implications arising in respect of the reduction of a debt, depends mainly on whether the loan funding was used to fund tax deductible expenditure such as operating expenses or alternatively capital or allowance assets. The debt reduction rules apply only to the extent to which the waiver, cancellation, reduction or discharge of a debt gives rise to a reduction amount, in other words, the amount, by which the decrease in debt exceeds the consideration received by the creditor in return.

Assumption of contingent liabilities under the corporate reorganisation rules

Author: Mareli Treurnicht (Director at Cliffe Dekker Hofmeyr). On 19 July 2017 National Treasury published the Draft Taxation Laws Amendment Bill, 2017 (Bill) in terms of which it proposes to clarify the tax implications arising when a person assumes contingent liabilities under the corporate reorganisation rules contained in s41 to s47 of the Income Tax Act, No 58 of 1962 (Act) (Corporate Reorganisation Rules).  

When proceeds accrue for tax purposes?

Author: Heinrich Louw (Cliffe Dekker Hofmeyr). Judgment was delivered in the tax court on 30 May 2017 in the matter of M v Commissioner for the South African Revenue Service (case number 14005, as yet unreported). The case dealt with the familiar question of whether proceeds had accrued in a particular year of assessment, even though payment was only received in a subsequent year of assessment. While the judgment is not by any means ground-breaking, it serves as additional authority for some of the established principles, and touches on some finer points, regarding the suspension of performance. In this case the taxpayer had sold certain immovable properties during its 2013 year of assessment. It was a term of the agreements of sale that the buyer would only make payment of the purchase consideration against transfer of the relevant immovable property a term that is relatively common. Transfer was only given Read More …

Hybrid debt instruments what you need to know

Author: Michael Reifarth (Tax Executive at ENSafrica). The hybrid debt rules were introduced into the Income Tax Act, 1962 (the Act) and came into effect in 2014 by way of specific anti-avoidance provisions contained in section 8F and 8FA of the Act. The provisions relating to hybrid debt instruments as contained in section 8F of the Act seek to identify and provide for specific tax treatment of certain debt instruments that contain equity-like features. In instances where section 8F applies to a hybrid debt instrument, the legislation disallows the deduction of the amounts of interest incurred by the issuer and furthermore deems such amounts to be dividends in specie declared and paid by the issuer.

SARS ruling on tax on taking over contingent liabilities in sale of business

The South African Revenue Service (SARS) has sought to provide guidance on a difficult tax issue: the assumption (taking over) of contingent liabilities on the acquisition of a business as a going concern. In this regard SARS has issued Interpretation Note 94 dated 19 December 2016 (IN). The matter is best discussed by way of examples. Example 1: The seller (S) runs a toy shop. He owns the shop building and a stock of toys. The value of the building is R60 and the value of the stock is R30. He owes a supplier R15. S has two employees:

No “halfway-house” for Government Grants

Author: Esther van Schalkwyk, Senior Tax Consultant at BDO SA. In terms of a proposed amendment contained in the Draft Taxation Laws Amendment Bill of 2016 (‘Draft TLAB’), the taxation of government grants will likely change. National Treasury proposed a special inclusion in taxpayers’ “gross income” of “any amount received by or accrued to a person by way of a government grant as contemplated in section 12P”.

Double non-taxation of hybrid debt instruments issued by non-residents

Author: Esther van Schalkwyk, Senior Tax Consultant at BDO South Africa.  National Treasury indicated its intention to address double non-taxation, if an issuer of a hybrid debt instrument is not a South African resident taxpayer, with effect from 24 February 2016. Debt instruments containing equity features are commonly referred to as hybrid debt instruments. The anti-avoidance rules contained in the Income Tax Act reclassify interest on “hybrid debt instruments” and “hybrid interest” as dividends in specie in the hands of the issuer and the holder of an instrument. As a result, the issuer of the hybrid debt instrument is denied an interest deduction against its taxable income and is usually subject to dividends tax. The holder, on the other hand, is deemed to receive an exempt dividend instead of an interest payment.

Funding for small and medium-sized enterprises

The Venture Capital Company (VCC) Tax Regime was introduced into the Income Tax Act 58 of 1962 (Act) to encourage investment into small and medium-sized enterprises (SMEs) and junior mining companies. Since its inception in 2008 and despite subsequent amendments in 2011, there has been limited take-up in the market, with only a handful of VCC funds having become fully funded and operational.