Page 52 - SAIT Compendium 2016 Volume1

s 1 INCOME TAX ACT 58 OF 1962 s 1
but does not include any person who is deemed to be exclusively a resident of another country for purposes of the application of any agreement entered into between the governments of the Republic and that other country for the avoidance of double taxation:
[Words following para. (b) and preceding the proviso in the de nition of ‘resident’ substituted by s. 2 (1) (w) of Act 22 of 2012 – the date of commencement was 1 January 2013 but the said s. 2 (1) (w) of Act 22 of 2012 was retrospectively deleted, also wef 1 January 2013, by s. 191 (1) (a) of Act 31 of 2013.]
Provided that where any person that is a resident ceases to be a resident during a year of assessment, that person must be regarded as not being a resident from the day on which that person ceases to be a resident: Provided further that in determining whether a person that is a foreign investment entity has its place of effective management in the Republic, no regard must be had to any activity that— (a) constitutes—
(i) a nancial service as de ned in section 1 of the Financial Advisory and Intermediary Services Act, 2002 (Act 37 of 2002); or
(ii) any service that is incidental to a nancial service contemplated in subparagraph (i) where the incidental service is in respect of a nancial product that is exempted from the provisions of that Act, as contemplated in section 1 (2) of that Act; and
(b) is carried on by a nancial service provider as de ned in section 1 of the Financial Advisory and Intermediary Services Act, 2002 (Act 37 of 2002), in terms of a licence issued to that nancial service provider under section 8 of that Act;
[First proviso to the de nition of ‘resident’ added by s. 2 (1) (x) of Act 22 of 2012 – rst proviso is deemed to have come into operation on 8 May 2012 and applies in respect of any person that ceases to be a resident on or after that date.]
[Second proviso to de nition of ‘resident’ added by s. 2 (1) (y) of Act 22 of 2012 – date of commencement: 1 January 2013; the second proviso applies in respect of years of assessment commencing on or after that date.]
[De nition of ‘resident’ inserted by s. 2 (h) of Act 59 of 2000 and amended by s. 33 (1) of Act 12 of 2003 and by s. 2 (1) (x) and (y) of Act 22 of 2012.]
‘residential unit’ means a building or self-contained apartment mainly used for residential accommodation, unless the building or apartment is used by a person in carrying on a trade as an hotel keeper;
[De nition of ‘residential unit’ inserted by s. 4 (1) (w) of Act 60 of 2008.]
‘retirement annuity fund’ means any fund (other than a pension fund, provident fund or bene t fund) which is approved by the Commissioner in respect of the year of assessment in question and, in the case of any such fund established on or after 1 July 1986, is registered under the provisions of the Pension Funds Act: Provided that the Commissioner may approve a fund subject to such limitations or conditions as he may determine, and shall not approve any fund in respect of any year of assessment unless he is in respect of that year of assessment satis ed—
[Words preceding the proviso substituted by s. 4 (1) (zZb) of Act 31 of 2013 – date of commencement: 12 December 2013.]
(a)
(b)
that the fund is a permanent fund bona de established for the sole purpose of providing life annuities for the members of the fund or annuities for the dependants or nominees of deceased members; and
[Para. (a) substituted by s. 2 (g) of Act 21 of 1995.] that the rules of the fund provide—
(i) for contributions by the members, including contributions made by way of transfer of members’ interests in approved pension funds, pension preservation funds, provident funds, provident preservation funds or other retirement annuity funds;
* Note: Sub-para. (ii) was also substituted by s. 4 (1) (zZc) of Act 31 of 2013, a provision that was to have come into operation on 1 March 2016 (‘2015’ replaced by ‘2016’ by s. 119 (1) (d) of Act 43 of 2014)). The said para. (zZc) of (s. 4 (1)) has, however, been deleted, and s. 119 has been repealed, by ss. 143 (1) (a) and 155 (1), respectively, of Taxation Laws Amendment Act, 2015.
44 SAIT CompendIum oF TAx LegISLATIon VoLume 1
[Sub-para. (i) amended by s. 4 (d) of Act 90 of 1964 and substituted by s. 2 of Act 96 of 1981 and by s. 7 (1) (zH) of Act 24 of 2011 – date of commencement: 1 March 2012.]
(ii) that not more than one-third of the total value of the retirement interest may be commuted for a single payment, and that the remainder must be paid in the form of an annuity (including a living annuity) except where two-thirds of the total value does not exceed R165 000 or where the employee is deceased: Provided that in determining the value of the retirement interest an amount calculated as follows must not be taken into account:
(a) in the case of a person who is a member of a provident fund and who is 55 years of age or older on 1 March 2016—
(i) any amount contributed to a provident fund of which that person is a member on 1 March 2016;
(ii) with addition of any other amounts credited to the member’s individual account of the provident fund prior to 1 March 2016; and
(iii) any fund return, as de ned in the Pension Funds Act, in relation to the contributions contemplated in subparagraph (i) or amounts credited contemplated in subparagraph (ii); or
(b) in any other case of a person who is a member of a provident fund—
(i) any amount contributed to a provident fund prior to 1 March 2016;
(ii) with addition of any other amounts credited to the member’s individual account of the provident fund prior to 1 March 2016; and
(iii) any fund return, as de ned in the Pension Funds Act, in relation to the contributions contemplated in subparagraph (i) or amounts credited contemplated in subparagraph (ii),
reduced by any amounts permitted in terms of any law to be deducted from the member’s individual account of the provident fund;
[Sub-para. (ii)* substituted by s. 4 (1) (e) of Act 90 of 1972, amended by s. 3 (1) (d) of Act 91 of 1982, substituted by s. 2 (1) (d) of Act 101 of 1990, amended by s. 2 (1) (k)
of Act 113 of 1993 and by s. 2 (2) (b) of Act 8 of 2007, substituted by s. 3 (1) (g) of Act 8 of 2007, amended by s. 1 (2) (c) of Act 3 of 2008 and substituted by s. 2 (1) (x) of Act 3 of 2008, by s. 4 (1) (x) of Act 60 of 2008, by s. 3 (1)