Page 219 - Juta's Indirect Tax

s 5 TRANSFER DUTY ACT 40 OF 1949 s 6
(4) In the case of a transaction whereby one property is exchanged for another, and—
(a) no additional consideration is payable by either party
to the transaction, the value on which duty shall be payable in respect of the acquisition of each property shall, subject to the provisions of subsections (6) and (7), be the declared value of each property: Provided that if the properties exchanged are not of equal value, duty shall, subject to the said provisions, be paid in respect of the acquisition of each property on the declared value of the property which has the greater value;
(b) additional consideration is payable by either party to the transaction, the value on which duty shall be payable, shall, subject to the provisions of subsections (6) and (7), be—
(i) in respect of the acquisition of the property for which the additional consideration is payable, the declared value of that property or, the declared value of the property given in exchange for that property plus the additional consideration payable, whichever is the greater; and
(ii) in respect of the acquisition of the other property, the declared value thereof, or the declared value of the property given in exchange for that property less the additional consideration payable, whichever is the greater.
(5) In the case of the cession of a lease or sub-lease referred to in paragraph (c) of the de nition of ‘property’ in section one, the value on which duty shall be payable shall be the amount of the consideration payable by the cessionary to the cedent in respect of the cession or, if no consideration is so payable, the declared value of the property acquired under the cession.
[Sub-s. (5) substituted by s. 4 (a) of Act 24 of 2011.]
(5A) . . .
[Sub-s. (5A) inserted by s. 2 of Act 86 of 1987 and deleted by Proc R11 of 28 January 1994.]
(6) If the Commissioner is of opinion that the consideration payable or the declared value is less than the fair value of the property in question he may determine the fair value of that property, and thereupon the duty payable in respect of the acquisition of that property shall be calculated in accordance with the fair value as so determined or the consideration payable or the declared value, whichever is the greatest: Provided that the provisions of this subsection shall not be construed as preventing the Commissioner, after a determination of the fair value of the property in question has been made, from revising such determination or from making a further determination of the fair value of that property under this subsection, provided such revision or further determination is made not later than two years from the date on which duty was originally paid in respect of the said acquisition.
[Sub-s. (6) substituted by s. 6 of Act 103 of 1969.]
(7) In determining the fair value in terms of subsection (6), the Commissioner shall have regard, according to the circumstances of the case, inter alia to—
(a) the nature of the real right in land and the period
for which it has been acquired or, where it has been acquired for an inde nite period or for the natural life of any person, the period for which it is likely to be enjoyed;
(b) the municipal valuation of the property concerned; [Para. (b) substituted by s. 15 of Act 9 of 2006.]
(c) any sworn valuation of the property concerned furnished by or on behalf of the person liable to pay the duty;
(d) any valuation made by the Director-General: Mineral Resources or by any other competent and disinterested person appointed by the Commissioner.
[Para. (d) substituted by s. 4 (b) of Act 54 of 2011.]
(8) If the fair value of property as determined by the
Commissioner—
(a) exceeds the amount of the consideration payable
in respect of that property, or the declared value, as the case may be, by not less than one-third of the consideration payable or the declared value, as the case may be, the costs of any valuation made by a person referred to in paragraph (d) of subsection (7) (other than the Director-General: Mineral Resources) shall be paid by the person liable for the payment of the duty;
[Para. (a) substituted by s. 4 (c) of Act 24 of 2011.]
(b) does not exceed the said consideration or declared value as the case may be, to the extent set out in paragraph (a), the costs of the valuation shall be
borne by the State.
(9) The provisions of subsections (6) and (7) shall not
apply in respect of the acquisition of property sold by public auction, unless the Commissioner is satis ed that the sale was not a bona de sale by public auction, or that there was collusion between the seller and the purchaser or their agents.
(10) In the case of the acquisition of property in terms of Item 8 of Schedule 1 to the Share Blocks Control Act, 1980 (Act 59 of 1980), the value of that property shall be reduced by an amount equal to the value of any supply made to the person acquiring that property, of a share mentioned in section 8 (17) of the Value-Added Tax Act, 1991 (Act 89 of 1991), where—
(i) tax in respect of such supply has been paid in terms of that Act; or
(ii) such supply is in terms of that Act subject to tax at the rate of zero per cent,
if the value of such share wholly or partly constitutes consideration for the acquisition of that property.
[Sub-s. (10) added by s. 3 of Act 136 of 1992.]
(11) Where any person has acquired any property and any consideration has in terms of section 6 (1) (c) been added to the consideration payable by such person in respect of such property, the value of that property shall be reduced by an amount equal to the value which constitutes consideration of any supply of such property made to the person acquiring that property, if in terms of the Value- Added Tax Act, 1991 (Act 89 of 1991)—
(a) value-added tax in respect of such supply has been
paid or will be accounted for; or
(b) such supply is subject to value-added tax at the rate of
zero per cent.
[Sub-s. (11) added by s. 2 of Act 20 of 1994.]
6 Certain payments to be added to the consideration payable in respect of property (1) There shall for the purpose of the payment of duty
be added to the consideration payable in respect of the acquisition of any property—
(a) any commission or fees paid or payable in respect of
the property by the person who acquired the property: Provided that where the property is acquired by way of a sale in execution, the amount to be added to the consideration in terms of this paragraph shall be so much of any commission or fees paid or payable by the person who acquired the property, as exceeds ve
Juta’s IndIrect tax 2016
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TRANSFER DUTY ACT