Page 252 - SAIT Compendium 2016 Volume1

s 41 INCOME TAX ACT 58 OF 1962 s 41
substitutive share-for-share transaction, an amalgamation transaction, an intra-group transaction, an unbundling transaction and a liquidation distribution as contemplated in sections 42, 43, 44, 45, 46 and 47, respectively, notwithstanding any provision to the contrary contained in the Act, other than sections 24BA and 103, Part IIA of Chapter III and paragraph 11 (1) (g) of the Eighth Schedule. [Sub-s. (2) substituted by s. 49 (1) (i) of Act 45 of 2003, by s. 32 (1) (d) of Act 32 of 2004, by s. 28 (1) (j) of Act 20 of 2006, by s. 52 (1) (e) of Act 35 of 2007, by s. 67 (1) (c) of Act 24 of 2011, by s. 73 (1) of Act 22 of 2012, by s. 90 (1) (g) of Act 31 of 2013 (substitution deemed to have come into operation on 1 January 2013 and applies in respect of transactions entered into on or after that date) and by s.
90 (1) (h) of Act 31 of 2013 – substitution deemed to have come into operation on 1 April 2013 and applies in respect of transactions entered into on or after that date.]
(3) The provisions of this Part shall not apply in respect of any transaction in terms of which any asset is disposed of to an insurer as de ned in section 29A if the asset is to be held in the insurer’s untaxed policyholder fund as contemplated in subsection (4) (a) of that section.
[Sub-s. (3) deleted by s. 37 (1) (g) of Act 31 of 2005 and inserted by s. 52 (1) (e) of Act 35 of 2007.]
(4) A company must for the purposes of this Part, be deemed to have taken steps to liquidate, wind up or deregister, where—
(a) in the case of a liquidation or winding-up—
(i) that company has lodged a resolution authorising the voluntary winding-up of that company in terms of—
(aa) section 80 (2) of the Companies Act in the
case of a company to which that section
applies;
[Item (aa) substituted by s. 90 (1) (i) of Act 31 of 2013 – date of commencement: 12 December 2013.]
(bb) Regulation 21 of the Regulations under the Co-operatives Act, 2005 (Act 14 of 2005), published under section 95 of that Act in Government Notice R. 366 of 30 April 2007, in the case of a co-operative; or
(cc) a similar provision contained in any foreign law relating to the liquidation of companies, in the case where that company is incorporated in a country other than the Republic, if such foreign law so requires; and
[Sub-para. (i) substituted by s. 67 (1) (d) of Act 24 of 2011 – the substituted sub-para. (i) is deemed to have come into operation on 1 January 2011.]
(ii) that company has disposed of all assets and has settled all liabilities (other than assets required to satisfy any reasonably anticipated liabilities to any sphere of government of any country and costs of administration relating to the liquidation or winding-up); and
[Sub-para. (ii) substituted by s. 49 (1) (j) of Act 45 of 2003, by s. 32 (f) of Act 8 of 2007 and by s. 52 (1) (f) of Act 35 of 2007.]
(iii) the manager, trustee or custodian of the portfolio of the collective investment scheme in property has in terms of section 102 (1) or (2) of the Collective Investment Schemes Control Act applied for the winding up of that portfolio;
[Sub-para. (iii) added by s. 90 (1) (j) of Act 31 of 2013 – substitution deemed to have come into operation on 24 October 2013.]
(b) in the case of a deregistration of a company, that company has lodged a request for the deregistration of that company in the prescribed manner and form—
(i) to the Companies and Intellectual Property Commission in terms of section 82 (3) (b) (ii) of the Companies Act in the case of a company to which that section applies; or
[Sub-para. (i) substituted by s. 90 (1) (k) of Act 31 of 2013 – date of commencement: 12 December 2013.]
(ii) . . .
[Sub-para. (ii) omitted by s. 67 (1) (e) of Act 24 of 2011 –
the deletion is deemed to have come into operation on 1 January 2011.]
(iii) in the case where that company is incorporated in a country other than the Republic, to a person who, in terms of any similar provision contained in any foreign law, exercises the powers and performs the duties assigned to the Commission contemplated in subparagraph (i), if such foreign law so requires;
[Para. (b) substituted by s. 67 (1) (e) of Act 24 of 2011 – the substituted paragraph is deemed to have come into operation on 1 January 2011.]
(c) that company has submitted a copy of the resolution contemplated in paragraph (a) (i) or the request contemplated in paragraph (b) to the Commissioner; and
[Para. (c) substituted by s. 67 (1) (e) of Act 24 of 2011 – the substituted paragraph is deemed to have come into operation on 1 January 2011.]
(d) all the returns or information required to be submitted or furnished to the Commissioner in terms of any Act administered by the Commissioner by the end of the relevant period within which the steps contemplated in this subsection must be taken, have been submitted or furnished or arrangements have been made with the Commissioner for the submission of any outstanding returns or furnishing of information.
[Para. (d) substituted by s. 32 (g) of Act 8 of 2007.]
(5) The Commissioner may prescribe the circumstances under which a person entering into any asset-for-share transaction, amalgamation transaction, intra-group transaction, unbundling transaction or liquidation distribution contemplated in sections 42, 44, 45, 46 and 47, respectively, must furnish a return to the Commissioner of
that transaction or distribution.
[Sub-s. (5) deleted by s. 52 (1) (g) of Act 35 of 2007 and inserted by s. 25 (1) (g) of Act 3 of 2008.]
(6) . . .
[Sub-s. (6) deleted by s. 37 (1) (g) of Act 31 of 2005.]
(7) An amount contemplated in paragraph (j) of the de nition of ‘gross income’ in section 1 and an amount to be included in gross income in terms of paragraph 14 of the First Schedule must for purposes of this Part be deemed to be an allowance that must be recovered or recouped.
[Sub-s. (7) added by s. 37 (1) (h) of Act 31 of 2005 and substituted by s. 61 (1) (i) of Act 7 of 2010.]
(8) . . .
[Sub-s. (8) added by s. 37 (1) (h) of Act 31 of 2005,
amended by s. 52 (1) (h) of Act 35 of 2007 and by s. 67 (1) (f) and (g) of Act 24 of 2011 and deleted by s. 90 (1) (l) of Act 31 of 2013 – deletion deemed to have come into operation on 1 January 2013 and applies in respect of transactions entered into on or after that date.]
(9) Where a person has made an election in respect of an assetunderparagraph65or66oftheEighthScheduleand disposes of or distributes any replacement asset in relation to that asset in terms of section 42, 44, 45 or 47—
(a) the person so disposing of or distributing that replacement asset must disregard any capital gain or amount recovered or recouped which was apportioned to that asset under paragraph 65 or 66 of the Eighth Schedule or section 8 (4) (e) and (eA), as the case may
244 SAIT CompendIum oF TAx LegISLATIon VoLume 1