Page 239 - SAIT Compendium 2016 Volume1

s 33
INCOME TAX ACT 58 OF 1962 s 35A
been paid under the provisions of this Act, and such certi cate shall be suf cient warrant to such master, pilot or agent of the amount so paid.
amount so withheld must be translated to the currency of the Republic at the spot rate on the date that the amount is paid to the Commissioner.
[Sub-s. (5) substituted by s. 59 (1) of Act 24 of 2011.]
(6) The purchaser must, together with the payment cont- emplated in subsection (4), submit to the Commissioner a return.
[Sub-s. (6) substituted by s. 271 of Act 28 of 2011 – date of commencement: 1 October 2012.]
(7) A purchaser is personally liable under the circumstances contemplated in section 157 of the Tax Administration Act, for the amount that must be withheld under subsection (1) only if the purchaser knows or should reasonably have known that the seller is not a resident and must pay that amount to the Commissioner not later than the date on which payment should have been made if the amount had in fact been withheld.
[Sub-s. (7) substituted by s. 271 of Act 28 of 2011 – date of commencement: 1 October 2012.]
(8) Subsection (7) does not apply if an estate agent or conveyancer assists in the disposal of the immovable property and that estate agent or conveyancer fails to notify the purchaser as contemplated in subsection (11).
(9) If a purchaser fails to pay any amount contemplated in subsection (1) to the Commissioner within the period allowed for payment in terms of subsection (4), that purchaser—
(a) is liable for interest at the prescribed rate on any
amount outstanding calculated from the day following the last date for payment to the date that the amount is received by the Commissioner; and
(b) must pay a penalty equal to ten per cent of that amount, in addition to any other penalty or charge for which he or she may be liable under this Act.
[NB: Sub-s. (9) has been substituted by s. 271 of the Tax Administration Act 28 of 2011, a provision that will be put into operation by proclamation. See Pendlex below.]
(10) . . .
[Sub-s. (10) substituted by s. 5 (1) of Act 32 of 2005 and deleted by s. 271 of Act 28 of 2011 – date of commencement: 1 October 2012.]
(11) Any estate agent and any conveyancer who is entitled to any remuneration or other payment in respect of services rendered in connection with the disposal of the immovable property by the seller or the registration of transfer, as the case may be, must before any payment is made to the seller each notify the purchaser in writing of the fact that the seller is not a resident and that the provisions of this section may apply.
(12) If an estate agent or conveyancer knows or should reasonably have known that the seller is not a resident and fails to comply with subsection (11), that failing estate agent or conveyancer is jointly and severally liable for the payment of the amount which the purchaser is required to withhold and pay to the Commissioner in terms of this section, but limited to the amount of remuneration or other payment in respect of the services rendered in connection with the disposal of the immovable property by the seller or the registration of transfer, as the case may be.
[S. 33 amended by s. 40 of Act 60 of 2001.] [S. 34 repealed by s. 19 of Act 90 of 1962.]
[S. 35 amended by s. 20 (a) and (b) of Act 90 of 1962, by s. 20 (1) (a) and (b) of Act 65 of 1973, by s. 27 (a), (b) and (c) of Act 85 of 1974, by s. 24 of Act 94 of 1983, by s. 21 (1) of Act 21 of 1994, by s. 39 (a), (b), (c) and (d) of Act 59 of 2000, by s. 32 (1) (a) and (b) of Act 74 of 2002, by s. 48 (a) and (b) of Act 45 of 2003, by s. 4 of Act 32 of 2005, by s. 45 (a) and (b) of Act 35 of 2007, by s. 58 (1) of Act 24 of 2011 and by s. 271 of Act 28 of 2011 and repealed by s. 65 (1) of Act 22 of 2012 – date of commencement: 1 July 2013; the repeal applies in respect of amounts received or accrued on or after that date.]
35A Withholding of amounts from payments to non-resident sellers of immovable property
(1) Any person (hereinafter referred to as ‘the purchaser’) who must pay any amount to any other person who is not a resident (hereinafter referred to as ‘the seller’), or to any other person for or on behalf of that seller, in respect of the disposal by that seller of any immovable property in the Republic must, subject to subsection (2), withhold from the amount which that person must so pay, an amount equal to— (a) 5 per cent of the amount so payable, in the case where
the seller is a natural person;
(b) 7,5 per cent of the amount so payable, in the case
where the seller is a company; and
(c) 10 per cent of the amount so payable, in the case
where the seller is a trust.
(2) The seller may apply to the Commissioner, in the
form and at the place as the Commissioner may determine, for a directive that no amount or a reduced amount be withheld by the purchaser in terms of subsection (1) solely having regard to—
(a) any security furnished for the payment of any tax due on the disposal of the immovable property by the seller;
(b) the extent of the assets of the seller in the Republic;
(c) whether that seller is subject to tax in respect of the
disposal of the immovable property; and
(d) whether the actual liability of that seller for tax in respect of the disposal of the immovable property is
less than the amount contemplated in subsection (1).
(3) (a) The amount withheld from any payment to the seller in terms of subsection (1) is an advance in respect of that seller’s liability for normal tax for the year of assessment
during which that property is disposed of by that seller.
(b) If the seller does not submit a return in respect of that year of assessment within 12 months after the end of that year of assessment, the payment of that amount is deemed to be a self-assessment in terms of section 95 (3)
of the Tax Administration Act.
[Para. (b) added by s. 2 of Tax Administration Laws Amendment Act, 2015 – date of commencement: date of promulgation of Tax Administration Laws Amendment Act, 2015.]
(4) The amount withheld by a purchaser in terms of subsection (1), must be paid to the Commissioner—
(a) where that purchaser is a resident, within 14 days after
the date on which that amount was so withheld; or
(b) where that purchaser is not a resident, within 28 days after the date on which that amount was so withheld.
(5) If an amount has been withheld in terms of subsection (1) from any amount payable in a foreign currency, that
34 . . . 35 . . .
Pendlex
Wording of sub-s. (9) to come into operation on a date to be proclaimed
(9) If a purchaser fails to pay any amount contemplated in subsection (1) to the Commissioner within the period allowed for payment in terms of subsection (4), that purchaser must pay a penalty equal to ten per cent of the amount, in addition to any other penalty or charge for which he or she may be liable under this Act.
SAIT CompendIum oF TAx LegISLATIon VoLume 1 231
INCOME TAX ACT – SECTIONS