South Africa: Budget Review - 2012 Budget Highlights

Last Updated: 20 March 2012
Article by Edward Nathan Sonnenbergs

Most Read Contributor in South Africa, September 2018

We set out below a summary of the key tax proposals contained in the 2012 budget speech of the Minister of Finance, Pravin Gordhan on 22 February 2012.

The budget speech contained a number of important announcements and proposals:

Highlights

  • The rates of corporate tax and income tax remain the same. However the taxation of dividends has effectively been increased from the current 10% STC to a proposed 15% dividend withholding tax with effect from 1 April 2012. The validity of existing STC credits has been reduced from 5 to 3 years. This surprise announcement may cause reconsideration by corporations of the decision whether or not to defer the declaration and payment of dividends to after 1 April 2012 (which would benefit shareholders who qualify for a broader range of exemptions than is currently the case). Regard should be had to the different rules governing the tax trigger for STC and dividend tax respectively.
  • The rates of capital gains tax have effectively been increased for individuals and entities in relation to disposals of assets from 1 March 2012. The effective increase in rate for individuals and special trusts is from 10% to 13.3%; for companies from 14% to 18.6% and for other trusts from 20% to 26.7%.
  • The voluntary disclosure programme has attracted 18 000 applications and has yielded almost R1bn in additional tax thus far. It appears that information gathered from the VDP program will lead to detailed examination of certain target areas including: under declaration of income, claiming of excessive deductions, VAT abuse, abuse of share incentive schemes by corporate executives, abuse of benefits granted to foreign persons employed in South Africa and non payment of PAYE and failure to submit PAYE returns. Particular mention was made of poor tax compliance in respect of trusts and by tax advisors in South Africa.

Corporate tax proposals

Certain of the specific proposals affecting corporations and business are the following:

  • National health insurance is to be phased in over a 14 year period beginning in 2012/13. Funding options under consideration include: an increase in the VAT rate, a payroll tax on employers, a surcharge on the taxable income of individuals, or some combination of these. A discussion paper will be published by end of April 2012.
  • Tax preferred savings and investment accounts are proposed as alternatives to the current tax free interest income caps, in order to encourage greater savings amongst South Africans. These vehicles will be introduced by April 2014 and a discussion document will be published in May 2012.
  • The question of gearing in business and in section 45 transactions remains a focus area. It is proposed that a revised set of reclassification rules deeming certain debt to be equivalent to shares will be enacted. In 2013 consideration will also be given to a limit on interest deductions relative to earnings before interest and depreciation to limit excessive debt financing. On the other hand, a welcome development proposes that the use of debt to directly acquire controlling share interests of at least 70% will be allowed. However, the interest will be subject to the same controls applied to section 45 acquisitions.
  • The tax treatment of property loan stock companies is proposed to be placed on the same footing as property unit trusts. The proposal is the PLS entities will be placed on par with property unit trusts. Rental income from these entities will fall under the pass through regime that applies to property unit trusts. No further details of this proposal have been given nor the interaction between this proposal and the long awaited REIT regime.
  • The Manufacturing Competiveness Enhancement Programme was announced in the medium term budget speech to assist certain manufacturers in distress as a result of the effects of the economic crisis. R5.8 billion has been set aside for this.
  • The Minister of Trade and Industry published draft legislation on special economic zones in January 2012. R2.3 billion has been allocated. The following tax intervention will be explored further:
    • A possible reduction in the headline corporate income tax rate for businesses within selected zones (as determined by the Minister of Finance after consultation with the Minister of Trade and Industry).
    • An income tax exemption for the operators of special economic zones.
    • An additional deduction from taxable income for the employment of workers earning below a predetermined threshold.
  • A tax incentive is proposed for developers and employers to build new affordable housing, comprising at least 5 units for sale below R300 000 per dwelling. Public consultation will be undertaken.
  • Gold mining companies will in future be taxed only in accordance with the standard formula as a result of the repeal of STC from 1 April 2012.
  • The proposed passive holding company regime which was scheduled to be introduced in 2013, will be scrapped.
  • Debt cancellations and restructurings will receive further relief to eliminate adverse tax impact of debt reductions, cancellations and capitalisations, inter alia, the aim will be to eliminate adverse tax consequences when debt relief merely restores the debtor to solvency.
  • The introduction of the 2008 Companies Act gives rise to a need for further alignment between the company and tax legislation and workshops will be held to deal with the practical issues which arise in this area specifically dealing with M&A transactions (some of the issues arising in this area are analysed in a number of articles published by ENS).
  • The mark to market taxation of financial instruments will be expanded on a case by case basis initially for foreign currency instruments. Then other instruments and ultimately a wider set of financial assets and liabilities.
  • The sale of trading stock to connected persons will be removed from the current anti-avoidance rules.
  • The sale of a business coupled with the transfer of contingent liabilities has been problematic in recent years following tax case law on the point. A proposed amendment to deal with the difficulty was dropped last year and it now appears that the difficulties will be dealt with through interpretative guidance coupled with legislative refinements later in the year.
  • The tax treatment of share issues is to receive consideration. Currently the issue of shares does not trigger income tax or CGT. It is proposed that the exemption for the issue of shares will be limited to their value, with the excess being subject to tax.
  • The conversion of a share block company to a sectional title scheme will receive a tax free rollover treatment to avoid certain tax issues on the conversion.
  • The urban development zone incentive for new and renovated buildings in UDZ's may be extended beyond 2014.
  • The treatment of captive finance vehicles is to be reviewed for potential elimination as a result of apparent abuses both from an income tax and VAT perspective.
  • The taxation of income from capital (i.e. interest, dividends, capital gains and rental) is to be reviewed to ensure greater equity and eliminate tax arbitrage.

Short term and long term insurers

It is proposed that there will be a comprehensive review of the tax system for insurers including the taxation, accounting and regulatory practices of the four fund system. The position of short term insurance reserves will be addressed in 2012 and long term insurers will be addressed in 2013. A paper on long term insurers will be circulated for comment in mid 2012.

Personal income and employees' tax

Tax rates

  • Expected annual adjustments have been proposed.
  • Tax free interest income annual threshold will remain at R22 800 for individuals below 65 years and R33 000 for individuals 65 years and over.
  • Foreign income threshold will remain at R3 700.
  • Personal service providers are currently subject to a 33% rate which will be reduced to 28%.

Capital gains tax

  • From 1 March 2012 any capital gain arising from the disposal of assets will be subject to an increased inclusion rate, specifically for individuals and special trusts it will increase to 33.3% resulting in an increase in the maximum effective capital gains tax rate to 13.3%.
  • The following exclusions will be increased on 1 March 2012:
    • For individuals and special trusts from R20 000 to R30 000 annually.
    • On death from R200 000 to R300 000.
    • Primary residence exclusion from R1 500 000 to R2 000 000.
    • On disposal of a small business when a person is over 55 years old from R900 000 to R1 800 000.

Retirement schemes

  • Contribution to retirement funds
    • From 1 March 2014 an employer's contribution will be deemed to be a taxable fringe benefit and individuals will be allowed to deduct up to 22.5% (persons younger than 45) and 27.5% (persons older than 45) of the higher of their taxable income or employment income for contributions to pension, provident and retirement annuity funds, with a minimum annual deduction of R20 000. The maximum annual deduction will be R250 000 for taxpayers younger than 45 and R300 000 for taxpayers older than 45.
    • Non-deductible contributions will be exempt from income tax if they are either taken as part of the lump sum or as annuity income upon retirement.
  • False Job Terminations
    • Access to withdrawal funds from employer provide retirement schemes under artificial circumstances, such as the false job termination of an employee solely to gain access to employer provided retirement funds will no longer be permitted.

Taxation of payouts from South African or foreign retirement funds

  • There are currently a number of anomalies in the tax treatment of lump sum and annuity payouts from South African or foreign retirement funds depending on whether a South African resident or non-resident receives the payout. In particular an important factor is whether the services that relate to the payout were rendered in South Africa or elsewhere.
  • The issue will receive due consideration during the course of 2012 or 2013.

Medical aid

  • From 1 March 2012 medical tax credits will replace medical deductions. Monthly tax credits will be increased from R216 to R230 for the first two beneficiaries and from R144 to R154 for each additional beneficiary from this date.
  • A deduction will be allowed to the extent that medical scheme contributions in excess of four times the total allowable tax credits plus out-of-pocket medical expenses exceed 7.5% of the individual's taxable income.
  • From 1 March 2012, additional medical deductions will be converted into tax credits at a rate of 25% for taxpayers younger than 65 and employer contributions to medical schemes on behalf of ex-employees will be deemed to be a taxable fringe benefit and the ex-employees may claim the appropriate tax credits.
  • Taxpayers older than 65 years and those with disabilities or disabled dependents will be able to convert all medical scheme contributions in excess of three times the total allowable tax credits plus out-of-pocket medical expenses into a tax credit of 33.3%. The 7.5% threshold will not apply to these taxpayers.

Withholding tax on gambling winnings

  • A national gambling tax based on gross gambling revenue will be introduced in place of the proposed withholding tax on gambling tax on gambling winnings above R25 000, effective 1 April 2013. This tax will be imposed as an additional 1% national levy on a uniform provincial gambling tax base.
  • A similar tax base will be used to tax the national lottery.

Employee share schemes

  • It is proposed that the various types of employee share schemes be reviewed to eliminate loopholes and possible double taxation as well consider the interrelationship between employer deductions and employee share scheme income.
  • The incentive regime for low income earners will also be reviewed and potentially be merged into a single employee share scheme regime.
  • These issues will be resolved over a two year period.

Fringe benefits

  • It is proposed that instead of the various formulas contained in the Act to calculate the value of a fringe benefit, where possible and practical, the employer be allowed to use the actual cost to determine the value of the fringe benefit for the employee.
  • Some low-income employees receive financial assistance from their employers to acquire a house. The current tax issues of the provision of financial assistance by employers to low income employees to acquire a house will be explored.

Subsistence allowance

SARS has released a document which sets out the impending changes to the deemed subsistence allowance amounts which will be prescribed by the Minister in terms of section 8(1)(c)(ii) of the Income Tax Act 58 of 1962.

Key person insurance

  • The continued allowance of deductible premiums for insurance to purchase ownership interest of an employee shareholder or to repay the allocation of debt guaranteed by an employee shareholder will be explored, along with other tax issues relating to this form of insurance.
  • These issues will be resolved in 2012 or 2013.

Taxation of divorce order retirement funds

There are still anomalies in respect of the introduction of the "clean break" principle in private sector funds which will be addressed so that the overall tax treatment of all divorce order retirement benefits paid out as a result of a divorce order will fully apply the "clean break" principle from 1 March 2012.

Residential accommodation

The current threshold in the formula which must be applied to determine the value of the employee related fringe benefit of employee accommodation will be increased from R59 750 to R63 556.

Tax ombud

A dedicated ombud for tax matters will be established during 2012 with the intention to provide taxpayers with a low cost mechanism to address administrative difficulties that cannot be resolved by SARS.

Indirect taxes

  • Securities transfer tax
    • The current blanket exemption from STT for brokers will be abolished and broker transactions, where the beneficial ownership rests with the broker, will be taxed at "an appropriate lower rate". This will also cover the purchase of shares utilised in support of derivative hedging. Consideration is being given to including derivatives in the STT regime. These amendments come into effect 1 April 2013.
  • Transfer duty
    • No changes are proposed to transfer duty.
  • Fuel levies
    • The general fuel levy on petrol & diesel will increase by 20c/l from 4 April 2012 and the Road Accident Fund levy will increase by 8c/l.

VAT

  • The VAT rate remains unchanged at 14%.
  • The following VAT legislation amendments are proposed:
    • the current zero-rating of interest earned on loans to non-residents will be eliminated;
    • the policy, legislation and administration of VAT on indirect exports of goods by road will be reviewed to ensure exporters are not prejudiced;
    • the VAT treatment of temporary imports will be reviewed to promote local processing and beneficiation; and
    • micro-businesses with a turnover less than R1 million will only be required to submit VAT returns twice a year.
  • Other proposed VAT amendments that are under consideration include:
    • clarification regarding the VAT liability date in respect of new VAT registrations;
    • the exemption of the receipts of bargaining counsels and political parties;
    • the amendment of the provisions governing instalment credit agreements to accommodate Sharia'h law compliant products;
    • the elimination of a double VAT charge on imported goods removed from a customs controlled area and on standard rated goods sold by a vendor prior to entry for home consumption.
  • The VAT treatment of public passenger transport will also be reviewed.

Carbon taxes

  • A carbon tax will contribute to the global response to mitigate climate change. A modest carbon tax will begin to price carbon dioxide emissions so that the external costs resulting from such emissions start to be incorporated into production costs and consumer prices. This will also create incentives for changes in behaviour and encourage the uptake of cleaner-energy technologies, energy-efficiency measures, and research and development of low-carbon options.
  • A second draft policy paper on carbon tax will be published during 2012. It is proposed that the tax will be phased in over a period and will be a percentage-based tax that will apply to CO2 emissions above certain levels. A summary released by the Minister sets out tax free thresholds and relief to certain industries and sectors, and maximum allowable percentage offsets.
  • Electricity levy increase
    • The electricity levy generated from non-renewable sources will be increased by 1c/kWh to 3.5c/kWh. The additional revenue will be used to fund energy-efficiency initiatives such as the solar water heater programme. This arrangement will replace the current funding mechanism that is incorporated into Eskom's annual tariff application. It will enhance transparency and enable government to use alternative agencies to deliver on energy-efficiency initiatives. The net impact on electricity tariffs should be neutral.
  • Increase in general fuel levy and Road Accident Fund levy
    • Government proposes to increase the general fuel levy and Road Accident Fund (RAF) levy by 20c/l and 8c/l respectively with effect from 4 April 2012. Table 4.7 shows the fuel tax rates and estimated fuel tax burden expressed as a percentage of retail and wholesale prices.

International

  • It is proposed that offshore section 45 provisions will be introduced to give South African multi-nationals more flexibility when restructuring offshore subsidiaries. A warning is given that the participation exemption will be curtailed if unbundling transactions indirectly strip value from a South African multi-national.
  • Withholding tax regimes on royalties and interest income will be co-ordinated at a uniform rate of 15% as from 2013.
  • The rate of tax on foreign companies will be reduced by 5% from 33% to the same 28% rate as domestic companies.
  • South African investment into Africa – changes will be introduced to deal with the potential dual residence tax status of certain African companies, due to their "effective management" through their South African parent. In addition, interest-free loans to foreign African subsidiaries may be treated as shares in order to avoid transfer pricing concerns and to accommodate a more flexible approach to funding African operations. A legislative carve out will be created for foreign investment funds (is not clear whether this applies only to those in Africa) so that they are not inadvertently subject to worldwide taxation in South Africa.
  • Anomalies in the headquarter company area will also be addressed.

Customs and excise

  • Excise duties on tobacco and alcohol
    • The excise duties on tobacco products are determined in accordance with a targeted total tax burden (excise duties plus VAT) of 52 per cent of the retail price. Increases in excise duties on tobacco products of between 5 and 8.2 per cent are proposed.
    • The current targeted total tax burdens (excise duties plus VAT) on alcoholic beverages are 23, 33, and 43 per cent of the weighted average retail selling price of wine, clear beer and spirits respectively. Following an announcement in Budget 2011, the appropriateness of these benchmark tax burdens was reviewed.
    • It is now proposed to retain the current benchmark for wine but to increase the targeted benchmark tax burdens for beer and spirits to 35 and 48 per cent respectively. These increases will be phased in over two years.
    • The resulting increases in excise duties on alcoholic beverages for this year range between 6 and 20 per cent. The increase will complement broader efforts to reduce alcohol abuse.
  • Taxation of luxury goods
    • From 1 October 2012, government proposes to subject the following items to ad valorem tax at the indicated rates:
      • Aeroplanes and helicopters with a mass exceeding 450kg but not 5 000kg at 7 per cent
      • Motorboats and sailboats longer than 10m at 10 per cent.
  • Tax administration
    • During 2012/13, the South African Revenue Service (SARS) will increase its focus on cross-border cooperation.
    • Customs officials will continue to focus attention on under-valuation of imports, especially in textiles, using a reference price database which industry is helping to update.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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