Tax Guide 2009/2010

Contributions to an approved South African pension fund:

Pension funds are often all considered not the best and should your employer have one the wisdom thereof should be reconsidered. This statement would not apply to where you have membership to a defined benefit fund.

Contributions to an approved South African retirement annuity fund:

Care should be taken before you buy a retirement annuity fund on the basis of having the tax deduction. Some financial advisors claim that you will have the tax deduction and then later you find out that only a small portion qualifies.

See Employee Tax Structuring for the more detailed rules.

The fringe benefit that will be added to an employee for the private usage of a business vehicle is 2.5% of the determined value of the vehicle. A second company vehicle is taxed at 4% on the determined value.

There are exemptions available where the employee uses the vehicle within limits. Also, where less than 10,000km private travel is done, a reduction in fringe benefit tax is possible.

Subsistence may be claimed where an employee with his normal home in South Africa spends a night away from home on business for the employer. Where a subsistence allowance is paid there is no PAYE deduction on the amount. Certain deemed amounts are expended on such business trips. It must be remembered that these deemed amounts are only claimable where an employer actually pays an employee a subsistence allowance. The deemed claims are limited to the amount of subsistence allowance paid. These deemed amounts were updated and with effect from March 2009:

• Travel outside South Africa: This is determined on a country-to-country basis. SARS has the comprehensive list of countries and the daily rates on its website (www.sars.gov.za)
• Travel in South Africa: R260 per day for meals and incidentals
• Travel in South Africa: R80 per day for incidentals only

Every employer in South Africa must withhold PAYE (Pay-as-you-earn) from remuneration paid to an employee. The rate of withholding is determined by the South African Revenue Service and is published in their EMP10 Guidelines. Tax withheld must be paid on or before the 7th day after the month in which remuneration was paid.

It is the employer’s obligation to ensure the correct withholding of PAYE. Where an employer has not withheld the correct amount, it becomes a debt to the South African Revenue Service. When audited, employers often find their tax exposures to be very large and SARS is on a drive to audit all employers.

At the end of a tax year the employer must report the PAYE to SARS on an IRP501 form. This form shows what PAYE was withheld per employee. The income and benefits paid to an employee and the PAYE withheld is also shown on an IRP5 certificate that is handed to the employee. This document is filed by the employee with his or her personal income tax return.

Employees’ tax is a complex area and specific questions will be easier to answer than attempting to do the topic justice with a more detailed explanation.

The residency test is very important for any foreigner coming to South Africa or for any South African going abroad. The reasons being primarily that:

• When you are resident of South Africa you pay tax on your worldwide income and as a non-resident you only pay tax on your South African “source” income and certain beneficial exemptions apply; and
• When you loose your South African tax residency, for instance you go work abroad and your circumstances dictate that you become non-resident, there is a deemed disposal of certain of your assets for capital gains tax purposes and this may cause some cash flow problems.

An individual will be tax resident in South Africa by applying the following tests:

Firstly, you will never be tax resident in South Africa should you be tax resident, in terms of a double tax agreement entered between South Africa and a tax treaty partner, in the partner country. An example will be where you go and work in the United Kingdom and you become a full tax resident there while you do not have available accommodation in South Africa. The double tax treaty between South Africa and the United Kingdom will then determine that you are exclusively resident in the United Kingdom and the result is that you become non-resident for South African tax purposes.

Provided the above does not apply, you will be South African tax resident as long as you are “ordinarily resident” in South Africa. The meaning of “ordinarily resident” is that you consider South Africa your real home and plan to return to South Africa. This is the reason why many South Africans overseas remain “ordinarily resident” in South Africa and also the reason why foreign workers coming to South Africa on expatriate assignments ever become “ordinarily resident”.

When you are not treaty resident in another country and you are not “ordinarily resident” in South Africa, it is still possible for you to be tax resident because of a days test. The test determines whether you are tax resident in South Africa for a particular year of assessment and has two legs:

• You are resident if you are, measured over six tax years, more than 91 days in of each of these years in South Africa; and
• In the first five of these six years, you are more than 915 days in South Africa

Should the test be met you will be tax resident in South Africa for the sixth tax year.

The South African Revenue Service now asks specific questions to the above effect in your personal income tax return and has become a lot more aware and active in enforcing the residency tests.

Foreign tax credits are generally given where a South African tax resident is taxed on income that has already been taxed in another country under a source principle and where any double tax agreement between South Africa and that other country allows that country to tax the income.

We will therefore not give tax credits where we have the right to first collect tax on income. This is pretty standard in all tax systems internationally.

The amount of credit must be claimed in an individual’s income tax return and the amount of credit given is limited to tax on the income being taxed twice. This ensures that tax credits can never be claimed against income that South Africa has the exclusive taxing right on. Exemptions however do exist. Please contact us for details.

South African resident taxpayers who work abroad still need to declare their foreign income in their individual income tax returns. This income can however be exempted form South African tax by claiming a tax exemption where certain conditions of absence have been met. These conditions are:

• It must be employment income; and
• The income must be earned while you were working outside South Africa; and
• The time that you must have been outside South Africa on work must be more than 183 days in any 365 day period and of this 183 days 60 days of absence must have been continuous; and
• The income must become taxable in your hands during the 365 days referred to in the previous point.

This is an important exemption and South Africans working abroad must plan the effect hereof carefully to ensure that they qualify for the exemption.

The first R17,500 of an individual taxpayer’s capital gains for a tax year is exempt from capital gains tax. In year of death, this amount is increased to R120,000.

Of the balance of a person’s capital gains, 25% thereof is included in a person’s normal taxable income and taxed at the marginal tax rate. For instance, on a gain of R117,500 and a marginal rate of 40% (therefore the person has other income in excess of R525,000), the capital gains tax will be R117,500 less Exclusion (R17,500) of which 25% (R25,000) is included as taxable. With a marginal tax rate of 40% the effective tax is R25,000 times 40% and therefore R10,000.

The effective rate for companies is 14% and for trusts 20%.

Transfer to Normal Person:

The rate for corporate entities and trusts is 8%

Transfer duty is paid where immovable property is acquired and the transaction is not subject to VAT. It also now applies to where the rights of ownership are transferred to immovable property where a company, close corporation or trusts are involved.