Page 238 - SAIT Compendium 2016 Volume1

s 31 INCOME TAX ACT 58 OF 1962 s 33
[Para. (d) added by s. 64 (1) (d) of Act 22 of 2012 – date of commencement: 1 January 2013; this paragraph applies in respect of years of assessment commencing on or after that date.]
(6) Where any transaction, operation, scheme, agreement or understanding that comprises the granting of—
(a) nancial assistance; or
(b) the use, right of use or permission to use any
intellectual property as de ned in section 23I,
by a person that is a resident (other than a headquarter company) to a controlled foreign company in relation to that resident or in relation to a company that forms part of the same group of companies as that resident, this section must not be applied in calculating the taxable income or tax payable by that resident in respect of any amount received by or accrued to that resident in terms of that transaction, operation, scheme, agreement or understanding if—
[Words preceding para. (i) substituted by s. 82 (1) (c) of Act 31 of 2013 – date of commencement: 1 April 2014; the substituted wording applies in respect of years of assessment commencing on or after that date.]
(i) . . .
[Para. (i) deleted by s. 82 (1) (d) of Act 31 of 2013 – date of commencement: 1 April 2014; the deletion applies in respect of years of assessment commencing on or after that date.]
(ii) that controlled foreign company has a foreign business establishment as de ned in section 9D (1); and
(iii) the aggregate amount of tax payable to all spheres of government of any country other than the Republic by that controlled foreign company in respect of any foreign tax year of that controlled foreign company during which that transaction, operation, scheme, agreement or understanding exists is at least 75 per cent of the amount of normal tax that would have been payable in respect of any taxable income of that controlled foreign company had that controlled foreign company been a resident for that foreign tax year: Provided that the aggregate amount of tax so payable must be determined—
(aa) after taking into account any applicable agreement for the prevention of double taxation and any credit, rebate or other right of recovery of tax from any sphere of government of any country other than the Republic; and
(bb) after disregarding any loss in respect of a year other than that foreign tax year or from a company other than that controlled foreign company.
[Sub-s. (6) added by s. 64 (1) (e) of Act 22 of 2012 – date of commencement: 1 January 2013; this subsection applies in respect of years of assessment commencing on or after that date.]
(7) Where—
(b) that foreign company is not obliged to redeem that debt in full within 30 years from the date the debt is incurred;
(c) the redemption of the debt in full by the foreign company is conditional upon the market value of the assets of the foreign company not being less than the market value of the liabilities of the foreign company; and
(d) no interest accrued in respect of the debt during the year of assessment,
[Para. (d) added by s. 50 (1) (b) of Act 43 of 2014 – date of commencement: 20 January 2015.]
this section must not apply to that debt.
[Sub-s. (7) added by s. 82 (1) (e) of Act 31 of 2013 – date of commencement: 1 April 2014; the added subsection applies in respect of years of assessment commencing on or after that date.]
[S. 31 substituted by s. 23 (1) of Act 21 of 1995, amended by s. 37 (1) of Act 30 of 1998, by s. 31 (1) (b) of Act 53 of 1999, by s. 37 of Act 59 of 2000, by
s. 16 of Act 5 of 2001, by s. 46 of Act 45 of 2003, by s. 44 (1) of Act 35 of 2007 and by s. 43 of Act 60 of 2008 and substituted by s. 57 (1) of Act 24 of 2011 – date of commencement: 1 April 2012. The substituted section applies in respect of years of assessment commencing on or after that date.]
31A . . .
[S. 31A inserted by s. 47 (1) of Act 45 of 2003 and
repealed by s. 29 (1) of Act 32 of 2004.]
32 . . .
[S. 32 amended by s. 27 of Act 113 of 1993 and repealed
by s. 27 of Act 8 of 2007.]
33 Assessment of owners or charterers of ships or aircraft who are not residents of the Republic
(1) Any person other than a resident who embarks passengers or loads livestock, mails or goods in the Republic, as an owner or charterer of any ship or aircraft, shall be deemed to have derived therefrom (apart from any taxable income derived by him from other sources) a taxable income of 10 per cent of the amount payable to him or to any agent on his behalf, whether the amount be payable in or outside the Republic, in respect of passengers, livestock, mails and goods so embarked or loaded, but the provisions of this section shall not apply to any such person who renders accounts which satisfactorily disclose the taxable income derived by him from the embarking of passengers or the loading of livestock, mails and goods as aforesaid.
[Sub-s. (1) amended by s. 26 of Act 85 of 1974 and substituted by s. 28 of Act 113 of 1993 and by s. 38 of Act 59 of 2000.]
(2) Where the person so embarking passengers or loading livestock, mails or goods has no recognized agent in the Republic other than the master of the ship or the pilot of the aircraft in connection with which any such amounts are payable, or where the agent fails to make returns of any such amounts payable in respect of any ship or aircraft— (a) the Commissioner may make the assessment from
such information as may be available to him;
(b) the tax thereon shall be payable to the Commissioner
prior to the clearance of the ship or aircraft;
(c) the principal of cer of customs at the port or airport where such ship or aircraft is being cleared shall have power to detain the clearance until such payment is
made; and
(d) upon such payment the master, pilot or agent (as the
case may be) shall be entitled to a certi cate from such of cer of customs that the amount so paid has
(a)
any transaction, operation, scheme, agreement or understanding has been entered into between a company that is a resident (for purposes of this subsection referred to as ‘resident company’) or any company that forms part of the same group of companies as that resident company and any foreign company in which that resident company (whether alone or together with any other company that forms part of the same group of companies as that resident company) directly or indirectly holds in aggregate at least 10 per cent of the equity shares and voting rights and that transaction, operation, scheme, agreement or understanding comprises the granting of nancial assistance that constitutes a debt owed by that foreign company to that resident company or any company that forms part of the same group of companies as that resident company;
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SAIT CompendIum oF TAx LegISLATIon VoLume 1