Page 263 - SAIT Compendium 2016 Volume1

s 44 INCOME TAX ACT 58 OF 1962 s 45
must disregard that disposal for purposes of determining its taxable income or assessed loss.
(9) Where an amalgamated company disposes of any equity shares in a resultant company that were acquired by that amalgamated company in terms of an amalgamation transaction that was subject to subsection (2) or (3), to a shareholder of that amalgamated company as part of an amalgamation transaction—
(a) . . .
[Para. (a) substituted by s. 69 (1) (f) of Act 24 of 2011 and by s. 76 (1) (g) of Act 22 of 2012 and deleted by s. 93 (1) (f) of Act 31 of 2013 – deletion deemed to have come into operation on 24 October 2013.]
(b) any shares acquired by a company in terms of that disposal must be deemed not to be a dividend which accrued to that company for the purposes of section 64B (3).
[Para. (b) substituted by s. 52 (1) (f) of Act 45 of 2003.]
(9A) . . .
[Sub-s. (9A) inserted by s. 34 (1) (c) of Act 8 of 2007 and
deleted by s. 63 (1) (b) of Act 7 of 2010.]
(10) . . .
[Sub-s. (10) substituted by s. 52 (1) (g) of Act 45 of 2003,
by s. 40 (1) (c) of Act 31 of 2005, by s. 63 (1) (c) of Act 7 of 2010 and by s. 69 (1) (g) of Act 24 of 2011 and deleted by s. 93 (1) (g) of Act 31 of 2013 – deletion deemed to have come into operation on 4 July 2013 and applies in respect of transactions entered into on or after that date.]
(11) . . .
[Sub-s. (11) amended by s. 52 (1) (h) of Act 45 of 2003,
by s. 40 (1) (d) of Act 31 of 2005 and by s. 50 (1) (b) of Act 60 of 2008 and deleted by s. 69 (1) (h) of Act 24 of 2011 – date of commencement: 1 January 2012. This deletion applies in respect of transactions entered into on or after that date.]
(12) . . .
[Sub-s. (12) substituted by s. 52 (1) (i) of Act 45 of 2003
and deleted by s. 55 (1) (a) of Act 35 of 2007.]
(13) The provisions of this section do not apply where
the amalgamated company—
(a) has not, within a period of 36 months after the date of the
amalgamation transaction, or such further period as the Commissioner may allow, taken the steps contemplated in section 41 (4) to liquidate, wind up or deregister; or
[Para. (a) substituted by s. 34 (1) (d) of Act 8 of 2007 and by s. 76 (1) (h) of Act 22 of 2012 – date of commencement: 1 January 2013; this substitution applies in respect of transactions entered into on or after that date.]
(b) has at any stage withdrawn any step taken to liquidate, wind up or deregister that company, as contemplated in paragraph (a), or does anything to invalidate any step so taken, with the result that the company will not be liquidated, wound up or deregistered:
Provided that any tax which becomes payable as a result of the application of this subsection may be recovered from the resultant company.
[Sub-s. (13) substituted by s. 52 (1) (j) of Act 45 of 2003 and amended by s. 69 (1) (i) of Act 24 of 2011 – date of commencement: 1 January 2012. This amendment (addition of the proviso) applies in respect of transactions entered into on or after that date.]
(14) The provisions of this section do not apply—
(a) in respect of any transaction that constitutes a
liquidation distribution as de ned in section 47 (1);
[Para. (a) substituted by s. 76 (1) (i) of Act 22 of 2012 – date of commencement: 1 January 2013; this substituted paragraph applies in respect of transactions entered into on or after that date.]
(b) in respect of any transaction if the resultant company is a company contemplated in paragraph (c) or (d) of the de nition of ‘company’;
(bA) in respect of any transaction if the resultant company is a portfolio of a collective investment scheme in securities and the amalgamated company is not a portfolio of a collective investment scheme in securities;
(bB) in respect of any transaction if the resultant company is a portfolio of a hedge fund investment scheme and the amalgamated company is not a portfolio of a hedge fund collective investment scheme;
(c)
[Para. (bB) inserted by s. 63 (1) (b) of Taxation Laws Amendment Act, 2015 – date of commencement: 1 January 2016; the paragraph applies iro years of assessment ending on or after that date.]
in respect of any transaction if the resultant company is a non-pro t company as de ned in section 1 of the Companies Act;
[Para. (c) substituted by s. 93 (1) (h) of Act 31 of 2013 – date of commencement: 12 December 2013.]
(d) in respect of any transaction contemplated in paragraph (a) of the de nition of ‘amalgamated company’ if the resultant company is a company contemplated in paragraph (b) or (e) (ii) of the de nition of ‘company’ and does not have its place of effective management in the Republic;
(e) in respect of any transaction if 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 the resultant company;
(f) in respect of any transaction if the resultant company is a public bene t organisation or recreational club approved by the Commissioner in terms of section 30 or 30A; or
(g) to a disposal of an asset by an amalgamated company to a resultant company—
(i)in terms of an amalgamation transaction contemplated in paragraph (a) of the de nition of ‘amalgamation transaction’ where that resultant company and the person contemplated in subsection (6) form part of the same group of companies immediately before and after that disposal; or
(ii) in terms of an amalgamation transaction contemplated in paragraph (b) of the de nition of ‘amalgamation transaction’ where that resultant company and the person contemplated in subsection (6) form part of the same group of companies (without regard to paragraph (i) (ee) of the proviso to the de nition of ‘group of companies’ in section 41) immediately before and after that disposal,
if that amalgamated company, resultant company and
person jointly so elect.
[Sub-s. (14) added by s. 40 (1) (e) of Act 31 of 2005, substituted by s. 55 (1) (b) of Act 35 of 2007, amended by s. 27 (1) (b) of Act 3 of 2008, by s. 63 (1) (d) of Act
7 of 2010 and by s. 69 (1) (j) of Act 24 of 2011 and substituted by s. 69 (1) (k) of Act 24 of 2011 – date
of commencement: 1 January 2012. This substituted subsection applies in respect of transactions entered into on or after that date.]
45 Intra-group transactions
(1) For the purposes of this section—
‘intra-group transaction’ means any transaction— (a) (i) in terms of which any asset is disposed of by one company (hereinafter referred to as the ‘transferor company’) to another company that is a resident (hereinafter referred to as the ‘transferee company’) and both companies form part of the same group of companies as at the end
of the day of that transaction; and
[Sub-para. (i) substituted by s. 94 (1) (a) of Act 31 of 2013 – substitution deemed to have come into operation
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INCOME TAX ACT – SECTIONS