Page 185 - SAIT Compendium 2016 Volume2

IN 4 (4) Income Tax acT: InTeRPReTaTIon noTes IN 4 (4)
4.2 Determining the number of days in South Africa
Under proviso (a) to the de nition of a ‘resident’ a day includes a part of a day. A day begins at 00:00 and ends at 24:00.* A person who arrives in the Republic at 23:55 would thus be regarded as being physically present in the Republic for one day, even though that person was only present for ve minutes of that day. For this reason, both the day of arrival and departure, as indicated in the person’s passport, are included in the count of the number of days. For purposes of calculating the aggregate number of days in the physical presence test, any day during which a person is in transit through the Republic between two places outside the Republic, and where that person does not formally enter the Republic through a ‘port of entry’, as contemplated in section 9(1) of the Immigration Act, 2002 (the Immigration Act), is excluded.
The term ‘port of entry’ is de ned in section 1 of the Immigration Act, and means –
‘a place designated as such by the Minister where all persons have to report before they may enter, sojourn or remain within, or depart from the Republic;’.
Admission into the Republic and the departure from the Republic is dealt with in section 9 of the Immigration Act and provides that a person may not enter or leave the Republic at a place other than a port of entry.
Based on the ordinary meaning of the word ‘person’, and the context in which the word is used, a ‘person’ includes a resident, citizen or a foreigner. A resident, citizen or foreigner must enter or exit South Africa through a port of entry. However, under section 31 of the Immigration Act, this requirement may be waived. In order to take this possibility into account, proviso (a) of the Act provides that, where entry or departure is not carried out through a port of entry, it may occur –
‘at any other place as may be permitted by the Director General of the Department of Home Affairs or the Minister of Home Affairs in terms of that Act;’
Example 1 – Calculating the number of days
Facts:
A, who is not ordinarily resident in South Africa, enters the Republic on 1 February at 19:00 and departs on 4 February at 06:00. A is not in transit through South Africa. How many days is A considered to be physically present in the Republic?
Result:
A is physically present in the Republic as follows:
Days
1 February from 19:00 to 24:00 (5 hours, or part of a day) 1 2 February (24 hours) 1 3 February (24 hours) 1 4 February from 00:00 to 06:00 (6 hours, or part of a day) 1 Total days physically present in South Africa 4
Although only actually in South Africa for 2 days and 11 hours, for purposes of the physical presence test, A is present in the Republic for 4 days.
Example 2 – Calculation of days to determine physical presence
Facts:
X, who is not ordinarily resident in the Republic, was physically present in the Republic for the following number of days:
Determine whether X is regarded as a resident under the physical presence test for the 2014 year of assessment. Result:
In order to meet the requirements of the physical presence test, X must satisfy all three elements of the test:
(i) Was X present in the Republic for a period or periods exceeding 91 days in aggregate in the current (2014) year of assessment?
This requirement is met, since X was physically present for 355 days.
(ii) Was X present in the Republic for a period or periods exceeding 91 days in aggregate in each of the previous ve
years of assessment (2009 to 2013)
This requirement is met, since X was physically present for more than 91 days in 2009 (95 days), 2010 (110 days), 2011 (115 days), 2012 (92 days) and 2013 (151 days).
(iii) Was X present in the Republic for a period or periods exceeding 915 days in aggregate during the ve previous
years of assessment (2009 to 2013)
* For a discussion on the meaning of a ‘day’ and ‘part of a day’, see paragraph 5.3.3 of Interpretation Note No. 14 (Issue 3) dated 20 March 2013 ‘Allowances, Advances and Reimbursements’.
saIT comPendIum oF Tax LegIsLaTIon VoLume 2 177
Year of assessment
Number of days
2009
95
2010
110
2011
115
2012
92
2013
151
2014
355