Loans to shareholders and deemed dividends

Draft legislation confirming transition from STC to dividends tax released

IN the 2012 Budget Speech delivered by Minister of Finance, Pravin Gordhan, on February 22, it was announced that the taxation of dividends will be increased from the current 10 percent secondary tax on companies (STC) to a 15 percent dividend withholding tax, with effect from April 1, 2012. Draft legislation confirming this proposal has now been released.

The transition from STC to dividends tax has brought about changes in respect of, among others, deemed dividends. Under the STC regime, the general principle is that a loan granted by a company to a shareholder or a connected person in relation to the shareholder is deemed to be a dividend which is subject to STC at a rate of 10 percent, calculated on the principal amount of the loan, subject to certain explicit exemptions.

The concept of “value extraction” was initially intended to replace the current deemed dividends rules under the STC regime.

The tax would be triggered when any form of value was extracted from a company for the benefit of connected persons in relation to the paying company. Value extraction tax was scheduled to come into effect together with dividends tax.

The value extraction regime was, however, completely deleted in terms of the Taxation Laws Amendment Act No. 24 of 2011 (which was promulgated on January 10, 2012) and the new dividends tax provisions now provide that where, during any year of assessment, any amount is owing to a company in respect of a loan or advance provided by the company to a person

that is not a company;
is a resident; and
is a connected person in relation to that company or a connected person in relation to the aforementioned person (that is connected to the person who is connected to the company), that company must be deemed to have paid a dividend if that loan or advance is provided by the company by virtue of any share held in that company by a person who is connected to the company.

In terms of the latest Draft Taxation Laws Amendment Bill 2012 (dated March 13, 2012), it is proposed that the dividend that is deemed to have been paid in terms of the above provision must be deemed to consist of a distribution of an asset in specie.

One interesting difference between deemed dividends on loans to shareholders in terms of STC compared with the dividends tax regime is that the deemed dividends under the dividends tax will not be calculated on the principal amount of the loan.

Dividends tax will only be charged on the difference between the “market-related rate” and what the borrower actually is charged. “Market-related interest” refers to the “official rate of interest” as defined in the Seventh Schedule to the Income Tax Act which is, in the case of a loan which is denominated in ZAR, a rate of interest equal to the South African repurchase rate plus 100 basis points.

Unlike STC, there is no tax “credit”when the loan is repaid under the dividends tax regime.

THE deeming rule will be triggered under dividends tax when a loan or advance has been made to a resident person that is not a company, for example a trust or a natural person who is a connected person in relation to that company or a connected person in relation to the aforementioned person, (that is connected to the person who is connected to the company).

Broadly speaking, a “connected person”means, in relation to a company, any person other than a company who individually or jointly with any connected person holds, directly or indirectly, at least 20 percent of the company’s equity shares or voting rights.

A natural person is connected to any relative and to a trust of which such natural person or such relative is a beneficiary. A trust is connected to any beneficiary of the trust and any connected person in relation to such beneficiary. Some amendments were made to the “connected person” definition, but these are not relevant in the context of the new deemed dividends provisions as the amendments only relate to when a company is connected to another company.

The above new deemed dividends provisions come into operation when the new dividends tax provisions come into operation. This date has been determined by the Minister of Finance as April 1, 2012. Dividends tax only applies to dividends declared and paid after April 1, 2012.The Explanatory Memorandum on the Taxation Laws Amendment Bill, 2011 (dated January 27, 2012) provides that the deemed dividend provisions will only apply to distributions received or accrued on or after April 1, 2012.

Some important differences between the STC and dividends tax regimes have been illustrated above.

It may be important, especially in the transitional period, to determine under which regime a loan will fall in order to determine the triggering of a deemed dividend.

ENS – Edward Nathan Sonnenbergs
Robert Gad and Silke Bovijn

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