Page 251 - SAIT Compendium 2016 Volume1

s 41 INCOME TAX ACT 58 OF 1962 s 41
portfolio of a collective investment scheme in securities or any portfolio of a hedge fund collective investment scheme; [De nition of ‘company’ inserted by s. 47 (1) (a) of Act 17 of 2009 and substituted by s. 67 (1) (a) of Act 24 of 2011 (date of commencement: 1 January 2012) and by s. 61 (1) (a) of Taxation Laws Amendment Act, 2015 (‘or any portfolio of a hedge fund collective investment scheme’ inserted) – date of commencement deemed to have been 1 April 2015.]
‘date of acquisition’ means the date of acquisition as determined in accordance with paragraph 13 of the Eighth Schedule or, where a person acquires an asset in terms of a transaction subject to the provisions of this Part, the deemed date of acquisition of that asset by that person as contemplated in this Part;
‘disposal’ means a disposal as de ned in paragraph 1 of the Eighth Schedule and any deemed disposal in terms of this Part;
[De nition of ‘disposal’ substituted by s. 37 (1) (b) of Act 31 of 2005.]
‘domestic nancial instrument holding company’
.. .
[De nition of ‘domestic nancial instrument holding company’ amended by s. 49 (1) of Act 45 of 2003 and by s. 32 (1) of Act 32 of 2004, substituted by s. 37 (1) (c) of Act 31 of 2005, amended by s. 28 (1) (a), (b) and (c) of Act 20 of 2006 and by s. 90 (1) (a) of Act 31 of 2013 and deleted by s. 54 (a) of Act 43 of 2014 – date of commencement: 20 January 2015.]
‘equity share’, for the purposes of sections 42 and 44, includes a participatory interest in a portfolio of a collective investment scheme in securities or in a portfolio of a hedge fund collective investment scheme;
[De nition of ‘equity share’ deleted by s. 32 (b) of Act 8 of 2007, inserted by s. 47 (1) (b) of Act 17 of 2009 and substituted by s. 61 (1) (b) of Taxation Laws Amendment Act, 2015 (‘or in a portfolio of a hedge fund collective investment scheme’ inserted) – date of commencement deemed to have been 1 April 2015.]
‘foreign nancial instrument holding company’ . . . [De nition of ‘foreign nancial instrument holding
company’ substituted by s. 49 (1) (f) of Act 45 of 2003, amended by s. 32 (1) (c) of Act 32 of 2004, substituted by s. 37 (1) (d) of Act 31 of 2005, amended by s. 28 (1) (e) , (f), (g), (h) and (i) of Act 20 of 2006, by s. 32 (c) and (d) of Act 8 of 2007, by s. 25 (1) (a) of Act 3 of 2008 and by s. 61 (1) (b) of Act 7 of 2010 and deleted by s. 54 (a) of Act 43 of 2014 – date of commencement: 20 January 2015.]
‘group of companies’ means a group of companies as de ned in section 1: Provided that for the purposes of this de nition—
(i) any company that would, but for the provisions of this de nition, form part of a group of companies shall not form part of that group of companies if—
(aa) that company is a company contemplated in paragraph
(c), (d) or (e) of the de nition of ‘company’; [Sub-para. (aa) substituted by s. 25 (1) (b) of Act 3 of 2008.]
(bb) that company is a non-pro t company as de ned in section 1 of the Companies Act;
[Sub-para. (bb) substituted by s. 61 (1) (c) of Act 7 of 2010 and by s. 90 (1) (b) of Act 31 of 2013 – date of commencement: 12 December 2013.]
(cc) any amount constituting gross income of whatever nature would be exempt from tax in terms of section 10 were it to be received by or to accrue to that company;
(dd) that company is a public bene t organisation or recreational club that has been approved by the Commissioner in terms of section 30 or 30A;
(ee) that company is a company contemplated in paragraph (b) of the de nition of ‘company’, unless that company has its place of effective management in the Republic; or
[Sub-para. (ee) added by s. 25 (1) (e) of Act 3 of 2008.] (ff) that company has its place of effective manage-
ment outside the Republic; and
[Sub-para. (ff) added by s. 90 (1) (e) of Act 31 of 2013 – addition deemed to have come into operation on 1 January 2013 and applies in respect of transactions entered into on or after that date.]
(ii)
any share that would, but for the provisions of this de nition, be an equity share shall be deemed not to be an equity share if—
(aa) that share is held as trading stock; or
(bb) any person is under a contractual obligation to sell or purchase that share, or has an option to sell or purchase that share unless that obligation or option provides for the sale or purchase of that share at its market value at the time of that sale or purchase;
[De nition of ‘group of companies’ inserted by s. 52 (1) (c) of Act 35 of 2007.]
‘hold’ in relation to an equity share means the holding, by a person, of an equity share in such manner that that person quali es as a ‘shareholder’ as de ned in this subsection, and the word ‘held’ must be construed accordingly;
‘listed company’ means a company as contemplated in paragraph (a) of the de nition of ‘listed company’ in section 1; ‘market value’ in relation to an asset means the price which could be obtained upon a sale of that asset between a willing buyer and a willing seller dealing at arm’s length
in an open market;
‘prescribed proportion’ . . .
[De nition of ‘prescribed proportion’ inserted by s. 37 (1) (e) of Act 31 of 2005, amended by s. 52 (1) (b) of Act 35 of 2007, by s. 61 (1) (d) and (e) of Act 7 of 2010 and deleted by s. 54 (a) of Act 43 of 2014 – date of commencement: 20 January 2015.]
‘qualifying interest’ . . .
[De nition of ‘qualifying interest’ amended by s. 37 (1) (f) of Act 31 of 2005 and deleted by s. 25 (1) (f) of Act 3 of 2008.]
‘resident’ . . .
[De nition of ‘resident’ inserted by s. 61 (1) (f) of Act 7 of
2010 and deleted by s. 67 (1) (b) of Act 24 of 2011 – date of commencement: 1 January 2012.]
‘shareholder’ . . .
[De nition of ‘shareholder’ substituted by s. 49 (1) (g) of Act 45 of 2003 and by s. 90 (1) (f) of Act 31 of 2013 (substitution
deemed to have come into operation on 24 October 2013) and deleted by s. 54 (a) of Act 43 of 2014 – date of commencement: 20 January 2015.]
‘trading stock’, for purposes of sections 42, 44, 45 and 47, includes any livestock or produce contemplated in the First Schedule and any reference to an amount taken into account in respect of an asset in terms of section 11 (a) or 22 (1) or (2) shall, in the case of such livestock or produce, be construed as a reference to the amount taken into account in respect thereof in terms of paragraph 5 (1) or 9 of the First Schedule, as the case may be;
[De nition of ‘trading stock’ inserted by s. 49 (1) (h) of Act 45 of 2003, amended by s. 52 (1) (d) of Act 35 of 2007 and by s. 61 (1) (h) of Act 7 of 2010 and substituted by s. 54 (b) of Act 43 of 2014 – date of commencement: 20 January 2015.]
‘unlisted company’ means any company which is not a listed company as de ned in this subsection.
(2) The provisions of this Part must, subject to subsection (3), apply in respect of an asset-for-share transaction, a
SAIT CompendIum oF TAx LegISLATIon VoLume 1 243
INCOME TAX ACT – SECTIONS