By Nico Theron, Senior Tax Consultant, Grant Thornton Johannesburg
In South Africa, income tax is usually payable on actual receipts and accruals, but for every rule, there are always exceptions. One exception to this rule applies to companies that deal in instruments, interest rate agreements, or option contracts. The exception allows them, if they so choose, to pay tax on a market-valuation basis. This means, irrespective of actual receipts and accruals, the interest and amounts payable or receivable on option contracts and interest rate agreements are taken into account for tax purposes, according to changes in the market value of the underlying instruments over a period.
However, in terms of the Taxation Laws Amendment Act, No 31 of 2013 (“TLAA”), brokers that are members of the JSE (that are companies) and any bank, branch, branch of a bank or controlling company as defined in section 1 of the Banks Act (hereinafter collectively referred to as “the covered persons”) are (as from 1 January 2014), no longer permitted to choose to pay tax on a market-valuation basis. This however does not mean that the covered persons will now be paying tax on receipts and accruals only.
The TLAA includes a provision that will see the covered persons paying tax on the accounting fair value adjustments of certain financial assets and financial liabilities as defined in the relevant International Accounting Standards (“IAS”).
The section introduced by the TLAA, section 24JB of the Act, requires covered persons to include in, or deduct from their income, all amounts in respect of certain financial assets and financial liabilities that are recognised in profit or loss in the statement of comprehensive income, in respect of financial assets and financial liabilities that are recognised at fair value in profit or loss in terms of IAS39.
The section applies in respect of any fair value adjustment passed after 1 January 2014.
The section however also applies in respect of 33% of any fair value adjustment made before 1 January 2014 for the first three years of assessment from 1 January 2014. The resulting effect on a covered person is that for the first three years of assessment (that ends after 1 January 2014), that covered person will, in addition to fair value adjustments that are required from 1 January 2014, have to assess how any past fair value adjustments of certain financial assets and financial liabilities affect their taxable income and provisional tax estimates.
While the newly introduced section seems simple and straightforward, it does give rise to other consequences that may not be immediately evident. For instance, if a covered person holds an equity share classified as held for sale for accounting purposes, the covered person will be required to pay income tax on the accounting fair value adjustment of that equity share, irrespective of whether or not the share has been disposed or not, and irrespective of whether or not that share has been held for more than three years. A situation, which in the absence of section 24JB, would have been capital in nature.
We recommend that covered persons obtain advice from both professional accounting and tax advisers as soon as possible to assess the impact of the proposed section on future provisional tax estimates.